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

Wednesday, 21 April 1999

Dáil Éireann Debate
Vol. 503 No. 4

First Page Previous Page Page of 144 Next Page Last Page

Debate resumed on amendment No. 6:

An Leas-Cheann Comhairle: Deputy Roche was in possession. However, as he has concluded his contribution I call the Minister.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Information on John O'Donoghue  Zoom on John O'Donoghue  I listened carefully to what the Opposition spokespersons and Deputy Joe Higgins had to say. Deputy Joe Higgins appears to be under the impression that, if the penalty stays the same, the Bill sends out a message to anyone trafficking in drugs with a substantial value, irrespective of their type, that we are equating soft drugs with hard drugs. That is an extraordinary conclusion to reach and is one I do not accept.

The message the Bill sends out is not that one should take soft as opposed to hard drugs, but that one should not take drugs or become involved in the sale, supply or trafficking of them. If one does, and the drugs are worth £10,000 or more, one will receive a mandatory sentence of ten years imprisonment. The Bill is clear on this and, therefore, people will not be able to say they did not know the law in this area.

I cannot accept the amendments tabled by the main spokespersons for the Opposition. I make a similar point regarding them as I made on amendments Nos. 2, 3, 4, 5 and 7. The intention in specifying the ten years minimum penalty is to make it crystal clear that the offence is one of such gravity that the imposition of an exemplary penalty is justified.

Section 5 provides that a person convicted of the new offence will incur a penalty commensurate with the gravity of that crime. In view of the unique nature of the trade in illegal drugs and the great misery inflicted on so many people by those who deal in that deadly trade, we, as legislators, must do all we can to rid ourselves of this scourge.

I accept that a minimum sentence of ten years is undoubtedly a harsh punishment but I am satisfied that it is warranted and proportional. It should send an unequivocal message to those engaged in the illegal drugs trade and to those [838] who might be tempted to engage in it, that we are serious about doing all we can to eradicate this blight.

The effect of Deputy Higgins's amendment would be to delete the “ten year minimum sentence”. In other words, the appropriate penalty to be imposed in a particular case would be left entirely at the discretion of the courts. That is the current position under the Misuse of Drugs Acts and the courts are empowered to impose a sentence of anything up to life imprisonment. Deputy Higgins is effectively saying that we should maintain the status quo and not change the law on penalties. I feel sure Deputy Higgins knows by now, since this legislation has had a tortuous journey through the Oireachtas to say the least, that it would defeat the purpose of the section. One should not lose sight of the fact that the Bill allows the courts to depart from the requirement to impose the minimum period in exceptional and specific cases where it would otherwise be unjust in all the circumstances to impose the minimum ten year sentence.

This brings me to the point made by Deputy Howlin, who felt that some cases would be too harshly treated unless there was at least some kind of an escape clause. I have inserted into the legislation at this stage an escape clause if there are exceptional and specific cases where it would otherwise be unjust in all of the circumstances to impose the minimum ten year sentence. Relevant factors which the court may consider include: whether the person pleaded guilty, taking account of the stage at which such an intention was indicated and the circumstances surrounding the indication, and whether the person materially assisted the investigation of the offence.

In this context, the Bill attempts to make a distinction between those who are cynically involved in the drugs trade for profit and those who, because of a problem with addiction, have become caught up in it. While I emphasis that feeding a habit is no excuse for engaging in this trade, it would be futile not to recognise the part which addiction can play. Therefore, the Bill gives a court the power when imposing sentence on a person convicted of the new drug related offence to inquire whether the person was addicted to drugs at the time of the offence and, if satisfied that he or she was so addicted and that this factor was a substantial fact leading to the commission of the offence, to list the sentence for review after half of the mandatory period specified by it has expired. When the review takes place the court may, having regard to any matters it considers appropriate, suspend the remainder of the sentence on any conditions it considers fit. This provision is appropriate and just but I should make it clear that even where these mitigating circumstances arise the persons involved will still face a long period of imprisonment.

With regard to Deputy Howlin's amendment, which seeks to delete the provision that the ten year minimum sentence may only be departed from in exceptional circumstances, I believe the [839] approach in the Bill is a better one. I acknowledge the philosophy underlying Deputy Howlin's amendment and feel he may accept that we are almost of one mind on it. The Bill allows the court to have regard to what are referred to as “exceptional and specific circumstances relating to the offence, or the person convicted of the offence,” which would make a sentence of 10 years imprisonment unjust in all the circumstances. It seems that where it is intended that a minimum sentence must be imposed by the court where the person is guilty of possession of drugs with a value of £10,000 or more, then in departing from that the court must be satisfied that there are exceptional circumstances which warrant that. Factors such as duress or mental capacity might be relevant to this and may be taken into account by the courts. This part of the Bill strikes the right balance and in the circumstances I cannot accept the amendments.

With regard to the other arguments which were presented, for the most part I had heard them before at different stages and my position remains as it was.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I am obviously concerned that after a long period to reflect, the Minister has not been impressed even by the minimalist position much less the larger position put forward by Deputy Higgins and me. Anything which tramples on the discretion of a judge to rule exclusively on the facts and circumstances of the case in front of him or her should be avoided.

I know the Minister is determined to send a clear signal about drug trafficking. By and large, he would have no opposition in this House to sending a clear message, but to treat all in a blanket way with a mandatory regime is bad law. I will not convince the Minister on that but I had hoped there would be some chink in the Minister's position on allowing some degree of discretion to the judge by removing the words “exceptional and” so that all circumstances could be taken into account by the judge in determining the final sentence. If the words “exceptional and” were removed, “specific circumstances relating to the offence, or the person” which would cause ten years' imprisonment to be unjust would remain. We should strive, particularly with the backdrop of recent business, to always ensure that all sentences are at least just. It disappoints me greatly that that minimalist change cannot be accepted by the Minister.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): It is regrettable that the Minister did not deal with any of the arguments even though he stated that he dealt with them before. I put some specific arguments but he merely keeps repeating one old mantra. From the experience of his party in 1994, the Minister should know that an exhortation to a prominent member of the party to keep repeating what he said before if he was pushed, did not serve them well at that time. I hoped the Minister [840] would have learned from that. He should deal with each argument separately and try to defeat them by referring to specifics and examples rather than repeating himself. My main argument is that this legislation sends a message that soft drugs can be confused with extremely more damaging and dangerous drugs such as heroin.

What is the Minister saying to the victims of other desperate crimes? Rape is a heinous crime. Will the Minister follow his logic by proposing a mandatory ten year sentence for rape? If not, why not? What about other despicable crimes against the person? The pushers and barons will load the drugs on to couriers, disparagingly referred to as “mules”, who will take the rap. This will result in more drug addicts – the “mules” are drug addicts in many cases – desperate to feed their habit. It will increase the population of heroin addicts in prisons. Will the Minister make commensurate resources available for treatment and rehabilitation for those in prison?

I am in favour of placing the heaviest burdens on peddlers of heroin, the most destructive of drugs, which has destroyed certain working class communities. Unless resources are invested to overcome deprivation, unemployment and poverty, unfortunately, some young people will always be vulnerable to the gangsters who peddle heroin in their midst. Overcoming those problems is the only answer to overcoming the devastation of heroin.

Mr. Gregory: Information on Tony Gregory  Zoom on Tony Gregory  I agree with most of what the Minister said, except in one important respect. The Minister proposed this measure when he was in Opposition and I voted against it on Committee Stage because he did not focus on the drug which has caused most devastation in this country – heroin. The Minister has an opportunity to send a message to those who are destroying families, young people and communities that he will deal with them in the harshest possible manner by introducing mandatory minimum ten year sentences for offences relating to hard drugs, particularly heroin.

This is nothing new. Across Europe major distinctions are made between heroin and other drugs. The idea of mandatory sentencing is difficult. However, it has been made necessary by the actions of the courts. I remember when the Minister first put forward this proposal the average sentence being given out by the courts for drug dealing was around three years, at a time when the Oireachtas had long since provided for life sentences for drug dealing. Since then not one major, minor or other drug dealer has been given a life sentence.

Only a few weeks ago, people who brought in over £10 million worth of heroin to Dublin received a six year sentence. Some members of the Judiciary who are totally out of touch with the destruction which heroin has caused are failing to act decisively and are thus contributing to the problem. Unfortunately, although I think the [841] Minister's proposal is well intentioned, he will also contribute to the problem because in this legislation he is failing to focus attention on the drug which is destroying lives and communities. This legislation was an opportunity to do that, which would have been worthwhile.

I only have two minutes to speak—

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  As this is Deputy Gregory's first contribution on this amendment he is not constrained by the two minute rule.

Mr. Gregory: Information on Tony Gregory  Zoom on Tony Gregory  How long do I have?

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  As long as the Deputy refers to the issue in the amendment—

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Until seven o'clock.

Mr. Gregory: Information on Tony Gregory  Zoom on Tony Gregory  I assure the Minister I will not take that long. I have spoken on this issue before as it has arisen so often. The escape clauses are adequate and I would not expand them further than the Minister has done, otherwise one would defeat the purpose of introducing a mandatory minimum sentence. I have examined this over the period of time it has been before us. It defeats its own purpose by not focusing on the drug which motivates us. Of the special or new legislation which has been introduced with regard to drug dealing has been in response to the appalling blight and plague of heroin, particularly in Dublin. It follows that when particularly harsh legislation is introduced it should relate specifically to that. If it does not it sends out a confused message which will not be accepted by young people because they know there are differences between these drugs.

The Minister said he will not change his mind. I have asked him to act on this before, as have Deputy Joe Higgins and others today.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): He should listen.

Mr. Gregory: Information on Tony Gregory  Zoom on Tony Gregory  I appeal to him again. This is a great opportunity to make a real contribution to the fight against heroin in Dublin. This would be of enormous benefit to Irish society, not just to inner city communities and the suburbs where heroin has caused devastation. It would be a brilliant sign that the Government is taking action against those who are causing this terrible plague. I cannot make the case any more strongly. I do not appreciate why the Minister cannot do this. He has not explained why it cannot be done, as it is done elsewhere.

As we are dealing with severe legislation against drug traffickers I wanted to take this opportunity to speak to the Minister about something I have raised with him on previous occasions and only a few months ago in the House. Several of the major drug traffickers who were living in Dublin and were at the root of much of the destruction of communities are now living in Amsterdam. The Minister will remember being at the committee meeting at which I named [842] two of those three people. George Mitchell, known as “the Penguin” and Derek Dunne, known as the “the Footballer” are now in Amsterdam; George Mitchell is in jail for a short period. They are still orchestrating the supply of heroin into Dublin. One of them was named only last week in a court in Britain—

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Deputy is wandering away from the subject matter of the amendment.

Mr. Gregory: Information on Tony Gregory  Zoom on Tony Gregory  —as being responsible for heroin supply into Dublin. I ask the Minister and his Department to look at ways, whether through the conspiracy laws or otherwise, to extradite those people and deal with them because, if we do not get the top traffickers, much of our efforts will be wasted.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Deputy Jim Higgins has two remaining opportunities to speak. He can speak for two minutes now, if he wishes, before the Minister speaks. He will then have an opportunity, as the proposer of amendment No. 6, to speak a second time.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I would like to hear the Minister's response to the substantial arguments made by Deputy Gregory in particular.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  I will then call Deputy Higgins to wind up the amendment. However, he can also have two minutes now if he wishes.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): The Minister put it very well when he said that powers exist under the Misuse of Drugs Act to impose life sentences. If the powers exist, why are they not being availed of? I take the point made by Deputy Gregory that sentencing is often not as tough as it should be. I am all in favour of sending out the toughest possible message. However, uniformity and non-statutory guidelines are needed. I gave the example of a case where a court decided to impose a life sentence because of the misuse of drugs. In effect, the court was using the drugs offence to deal with an associated offence the person involved had committed but on which the court was unable to achieve a conviction.

The Minister said the amendment I am proposing, in effect, asks to leave things alone. That is precisely what I am saying. I am saying that if there is an option under the existing legislation to impose a life sentence, that should be done if it is justified. A sentence of ten years should be imposed if that is justified and a sentence of five years should be imposed if there are mitigating circumstances.

The Minister wrote to me on 28 September in answer to a query I made about a case where I felt the sentence imposed on someone who raped a young girl at knife point was inadequate. The Minister spelled out to me the various studies being carried out in respect of sentencing and [843] sentencing policy. He said the Judicial Studies Institute had already held a conference for judges of the Supreme and High Courts and that one of the topics for the conference was sentencing; a second conference was held at the end of April, entitled “Drugs: The Judicial Response”, which members of all four levels of the Judiciary attended; and a further conference for judges of the Circuit Courts is scheduled for the end of this month.

He said that the complex question of sentencing policy was addressed at length by the Law Reform Commission, both in a consultation paper and its report on the matter and that action had already been taken on a number of the recommendations contained in the report. He gave the example of the Criminal Law Act, 1997, which abolished the concepts of penal servitude and imprisonment with hard labour and substituted imprisonment in their place. He said that other recommendations remain under consideration in his Department and that any proposals which emerge will be announced in the usual way. He then emphasised to me that it must be pointed out, however, that the report specifically recommends against the introduction of statutory sentencing guidelines.

Therefore, he is saying on one hand that there is a great deal of merit in what is proposed in relation to not tying the hands of the Judiciary but, on the other, he is flying in the face of that particular tenet or piece of advice by effectively tying the hands of the Judiciary by saying there must be a ten year sentence or nothing. I agree there is something of an escape clause, in section 5(3C), which states that “subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence”. I do not know exactly what the Minister is trying to do. It is a case of “Now you see it, now you don't”. It seems to be some sort of confidence trick, on one hand, and, on the other, he seems to be saying full-bloodedly, chest out, that a full ten year sentence will be given.

On the basis of the arguments that have been made, I ask the Minister to reflect and reconsider his attitude because it simply does not make sense.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I appreciate Deputy Gregory's support for the general thrust of the Bill, particularly his support for the ten year mini[844] mum sentence. That is important because I know, from dealing with this problem as an Opposition spokesman and as the Minister for Justice, Equality and Law Reform, how involved Deputy Gregory has been in this whole battle and how parts of his constituency have been severely affected by this problem.

What is then left to decide is whether the ten year sentence should, as is Deputy Gregory's opinion, only relate to heroin or whether it should also relate to other drugs. My reply is that I am in no way lessening the impact of the ten year minimum sentence on heroin dealing by broadening the scope of the provision to include other drugs. Deputy Gregory will understand, better than most, my reasons for that when I explain them.

The first is that people who have £10,000 worth of drugs or more in their possession for supply are not small dealers. More often than not they are big dealers who are also involved in organised criminal conspiracies for the sale and supply of illegal drugs to people in this country, particularly in this city. If I start making distinctions between dealers who supply ecstasy tablets with a street value of more than £10,000 to school children and dealers who supply heroin worth more than £10,000 to young people, I will enter into a quagmire and will lessen the impact of the legislation.

That is not to say that I do not have some sympathy with the argument he makes. However, I suggest that the better way is not to reduce or eliminate the minimum sentence in respect of people dealing in lesser drugs but to increase the sentence for those trafficking and dealing in harder drugs. In this respect, the Misuse of Drugs Acts are still there and sentences of up to life imprisonment can be imposed by the courts.

I am not saying that a person who traffics in cannabis worth £10,000 or more should get the same sentence as a person trafficking in heroin worth £1 million. I am saying that a person trafficking in either will get a minimum sentence of ten years but, obviously, the court will have to take the scale of the offence into account. The fact that there is a ten year minimum sentence would not prevent the court imposing a sentence of up to life imprisonment for what it might regard as a more serious offence. I believe that is the better option and I, too, debated in my mind the pros and cons of the argument expressed today by Deputy Gregory.

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

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Ardagh, Seán.
Aylward, Liam.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Browne, John (Wexford).
Callely, Ivor.
Carey, Pat. Collins, Michael.[845]

Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
de Valera, Síle.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fleming, Seán.
Flood, Chris.
Foley, Denis.
Fox, Mildred.
Hanafin, Mary.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael.
Kitt, Tom.
Lawlor, Liam.
[846] Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGennis, Marian.
Molloy, Robert.
Moloney, John.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Kennedy, Michael.
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, Ulick.
Carey, Donal.
Clune, Deirdre.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Finucane, Michael.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Gormley, John.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McCormack, Pádraic.
McDowell, Derek.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Jim.
Moynihan-Cronin, Breeda.
Naughten, Denis.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Ring, Michael.
Ryan, Seán.
Sheehan, Patrick.
Spring, Dick.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Yates, Ivan.

Question declared carried.

Amendment declared lost.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 7:

In page 7, between lines 46 and 47, to insert the following:

“(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.”.

Amendment put and declared lost.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I move amendment No. 8:

In page 7, to delete lines 47 to 49, and in page 8, to delete lines 1 to 3 and substitute the following:

“(3C) The court in determining the appropriate sentence under subsection (3B) of this section may have regard to any matters it considers”.

Question, “That the words proposed to be deleted stand”, put and declared carried.

[847] Amendment put and declared lost.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 9:

In page 7, line 48, to delete “exceptional and”.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  As amendment No. 10 and some subsequent amendments do not arise out of Committee proceedings recommital is necessary in respect of amendment No. 10 and other related amendments. Is it agreed that the amendments be recommitted? Agreed. Amendments Nos. 10 to 13, inclusive, 15 to 18, inclusive, 25, 26, 28 and 29 form a composite proposal. It is agreed to take amendments Nos. 10 to 13, inclusive, 15 to 18, inclusive, 25, 25, 28 and 29 together? Agreed.

Bill recommitted in respect of amendments Nos. 10 to 13, inclusive.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 10:

In page 9, lines 32 and 33, to delete “or the Attorney General”.

These amendments, which are drafting amendments, proposed in the interests of clarity are linked because they deal with the definition of who is the prosecutor for the purposes of Part III of the Bill. Part III deals with amendments to abolish preliminary examinations. A number of sections in Part III refer to the consent of the Director of Public Prosecutions or the Attorney General being required before an accused is sent forward for trial. However, since the Prosecution of Offences Act, 1974, which created the Office of the Director of Public Prosecutions the consent of the Attorney General is only required in a limited number of cases, for example, genocide, treason and offences under fisheries legislation.

In discussions with the office of the Director of Public Prosecutions and the office of the Attorney General about the terms of the Bill, it was felt that the definition of the “prosecutor” should make it clear that this would only be taken as a reference to the Attorney General in those cases where a prosecution role for the Attorney General was preserved. As a result I am proposing these amendments to the relevant sections to make it clear that reference to the Attorney General relates solely to those offences where the consent of the Attorney General is still required.

Amendments Nos. 10, 11, 12 and 13 are amendments to section 8 which defines the “prosecutor” for the purposes of Part III. They provide that reference to the prosecutor should not be taken to be a reference to the Attorney General except in relation to offences where the consent of the Attorney General is still required before such proceedings are instituted or continued.

[848] Amendments Nos. 15 to 18, inclusive, 25, 26, 28 and 29 are consequential and substitute the words “the prosecutor” in place of references to the Director of Public Prosecutions, the Attorney General or the prosecution where they appear in Part III.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 11:

In page 9, to delete line 37.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 12:

In page 9, lines 40 and 41, to delete “or the Attorney General”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 13:

In page 9, line 43, to delete “offence.”.” and substitute the following:

“offence.

(2) Notwithstanding subsection (1), references to the prosecutor in Parts 1A, II and III shall be construed, in relation to offences for which proceedings may not be instituted or continued except by, or on behalf or with the consent of, the Attorney General, as references to the Attorney General.'.”.

Amendment agreed to.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 14 arises from Committee Stage proceedings. Amendment No. 19 is related and both amendments may be discussed together. Is that agreed? Agreed.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I move amendment No. 14:

In page 10, to delete lines 5 to 31.

Part III sets about abolishing pre-trial procedures. I totally oppose the Minister's proposals because he is seeking to abolish one of the central elements of the criminal justice system, the preliminary examination of indictable offences in the District Court. As I said on Second Stage, this has been a long standing hobby horse of the Minister and he tried to accomplish it in the past by tabling an amendment to that effect to the Criminal Justice (Miscellaneous Provisions) Bill during its passage through the Oireachtas. The Minister will recall that the then Minister for Justice, Deputy Owen, reasonably and sensibly referred the matter to the Committee on Court Practice and Procedure.

In February 1997, the 24th committee responded by issuing its interim report, entitled Preliminary Examination of Indictable Offences. As Deputy Howlin said, it is worth considering the membership of the committee. It comprised Mr. Justice John Blaney, then a senior member of [849] the Supreme Court and now retired, Mr. Justice Robert Barr of the High Court, the late President of the Circuit Court, Judge Frank Spain, the President of the District Court, Judge Peter Smithwick, a senior counsel, a junior counsel, two solicitors and three other members. When the committee reported in February 1997, its main recommendation was to the effect that the preliminary examination system does not significantly delay the criminal process, remains an important safeguard for an accused person and should not, therefore, be abolished. The position could not be clearer.

I listened to the Minister advocate his viewpoint and he appears to favour the abolition on the basis that time will be saved. However, a committee, which was commissioned by the then Minister and comprised experts with hands on experience of the courts and who knew exactly what was happening, stated in its report in February 1997 that it would not save time. It said that the amount of time lost in pre-trial procedures is relatively paltry and there is no hint that it should be changed. It is obvious from the recommendations that it should not be touched.

It was one of the central planks of the Minister's manifesto and part of the zero tolerance concept, the idea of which is to get people to trial as quickly as possible using fast track procedures. Such procedures are fine in certain instances but they are not suitable when one is dealing with fundamental issues of justice and people's rights.

I acknowledge that the committee made valuable recommendations on the taking of depositions and other matters which the Minister has taken on board. However, the sole basis on which the Minister is proposing to abolish the preliminary examination is that a high percentage of those who undergo such an examination are sent forward for trial. Information is refused in only a small number of cases and this is the nub of the problem. The preliminary examination is a valuable filtering device to ensure that persons are not put on trial with all that entails and the cost involved unless there is credible evidence against them. The vast majority of defendants may be sent forward for trial, but the few who are not sent forward are the worry. This is a clear case where the price of liberty is eternal vigilance.

The Minister in insisting on this measure is showing utter contempt for the constitutional rights of accused persons in this jurisdiction. It is not good enough to say that if people are not guilty, they should not be tried. If a person is sent forward for trial on scant evidence, the trial may last for several days or, as in a recent case, for several weeks. Even if the person is acquitted, how can he or she hope to regain his or her innocence in the eyes of the community? The trial process and its consequences are a severe punishment.

I accept some changes could be beneficial to the preliminary examination system as recommended by the Committee on Court Practice and Procedure in its report. However, there is no case [850] for abolishing the preliminary examination. Has the Minister considered the cost implications of such a move? For example, more duties will be discharged by counsels who are more expensive than solicitors. Definite cost factors arise from the point of view of litigants.

As in the previous case, what statistics, estimates and figures show that this fundamental change is justified? What are the benefits? The firm conclusion of the committee which reported in February 1997 was that it will not speed up trials. Books of evidence are unlikely to be prepared more quickly just because there is no preliminary examination. The provision tampers with a fundamental procedure which has stood the test of time and served the State, defendants and the system well. It is a fundamental cornerstone and it should not be tampered with just to give further credence to something which was promised and probably was well meaning when the Minister was in Opposition but which does not stand up to scrutiny.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I endorse the arguments put forward by Deputy Higgins. Most people who have considered this matter and listened to the case put forward by the Minister are at a loss to understand why he is still wedded to this course of action. This Part of the Bill will abolish the preliminary examination which usually takes place in the District Court. This move will remove a further protection from the accused and its abolition will not have much effect in combating crime or in speeding up the administration of justice, which is the stated motivation of the Minister. Most amazingly, it runs counter to the recommendations of an expert committee which was set up by a Minister for Justice to advise on the matter.

The Committee on Court Practice and Procedure was chaired by the former member of the Supreme Court, Mr. Justice Blaney, and included all the luminaries I and Deputy Higgins mentioned. Surely their opinion must weigh on the Minister. Another member of the committee was the former Leas-Cheann Comhairle, Jim Tunney, and the Minister has also rejected his experience and deliberations in not accepting the recommendation. The Minister's colleague, Deputy McGennis, was also a learned member of the committee. All their expertise has been rejected by the Minister, although he has taken on board other recommendations. I am at a loss to understand why this learned opinion from a cross section of legal practitioners, judges, senior counsel and public representatives is not sufficient to persuade the Minister of the incorrectness of his approach to this matter. However, I will wait to see if he is prepared to change his approach.

It should be a characteristic of any Minister to be open to argument from the Opposition benches, despite what is written in the briefing note which always begins with “I have to reject [851] the amendments tabled by the Deputies opposite”. That is pro forma. It is written before any argument is made on this side of the House. I hope this Minister, like many of his predecessors, will be open to making his own mind up on the floor of the House, as is right and proper in a parliamentary assembly of this sort.

Amendment No. 19 relates to section 4B(3) on the serving of additional documents. Section 4C(1) states that “at any time after service of the documents mentioned in section 4B(1), the prosecutor shall cause the following documents to be served on the accused or his solicitor, if any:” and then lists the documents. I want to insert after section 4B(1) the simple phrase “but as soon thereafter as it is practicable to do so,”. That short but important phrase will be a safeguard to all the parties in the case.

In the Bill there is no requirement that this be done speedily or as soon as is practicable. That is an important matter. This amendment is to ensure that, after the service of the original book of evidence, where the prosecution wants to serve additional evidence it should do so as soon as is practicable. The interests of justice require that, not only to ensure that both prosecution and defence have fair play, but to ensure there is no subsequent review of the case on the basis that late or inadequate notice was given to one party.

I hope that minor amendment can be accepted. If the thrust of the argument made by Deputy Jim Higgins, myself and others is rejected by the Minister and he is still wedded to ensure that Part 3 of the Bill is enacted, he might at least have regard to this amendment to make a positive contribution to achieve the objective he has set, even though I am not convinced that Part 3 is a good proposal in itself.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The purpose of Deputy Higgins' amendment is to delete the new section 4A. The current procedure surrounding preliminary examinations can be quite cumbersome and the cause of needless delay. In the context of reducing delays in bringing persons to trial, the Bill abolishes preliminary examinations. Section 4A, which is a cornerstone of the new procedures the Bill is introducing, provides that the function of the District Court in the case of an accused who is to be tried on indictment will be to send that person forward to the trial court. The District Court will not be involved in examining the book of evidence or deciding if there is a case to answer. The effect of Deputy Higgins' amendment would be to revert in practice to the preliminary examination system. If I was to accept that, there would be little, if any, point in proceeding with the other provisions relating to preliminary examinations.

Amendment No. 19 is unnecessary. It seeks to place an obligation on the Director of Public Prosecutions to serve any additional documents as soon as it is practicable to do so. If the Deputy's concern is that the accused will have suf[852] ficient time to study the additional documents, I assure him this will be the case. The court on which the documents will also have to be served will be careful to ensure that an accused has had ample opportunity to examine the case against him or her. To include a specific statutory requirement that additional documents be served as soon as practicable could lead to endless disputation in court as to whether something had been done as soon as practicable. This would not only be undesirable but the courts can be relied on to vindicate the rights of the accused at all stages of the proceedings. In the circumstances the amendment is unnecessary and I cannot accept it.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Unnecessary or undesirable?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  In the course of the debate, Deputies Higgins and Howlin have argued strongly for the retention of the preliminary examination system. At other times, in this and other fora, they take the opportunity of wishing to reform Irish criminal law. The preliminary examination, as it exists in this State, has a history which dates back to the 16th or 17th century. In seeking to maintain this provision on our statute books as we enter the new millennium, I congratulate Deputies Higgins and Howlin on their reforming zeal.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Some things have served us well, such as habeus corpus. Is that not true?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It was introduced as a safeguard against the laying of an indictment against an accused person without some determination that there was a sufficient case for the accused to answer. It introduced an independent determination of the case being put by the prosecution authority. Since 1974, the office of the Director of Public Prosecutions has performed the role of bringing an independent determination of the case being put against an accused person. In those circumstances it is no longer essential that the preliminary examination procedure be retained.

Deputy Higgins cited a committee which was set up by his predecessor and, because of its membership, I should agree with its conclusions. There is a difference between this Minister for Justice, Equality and Law Reform and the previous one.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): A big difference.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I do not agree with the committee's recommendations.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Il Duce.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  My proposals are more realistic as we enter the new millennium and I will be proved to be correct in due course.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  That is arrogance.

[853]Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It is not a question of arrogance, it is a question of doing what is best by the people. This is the place to do it. It is a matter for the legislators in this House to decide how best to proceed. We can take what advice we like, that is a different matter, but at the end of the day it is for the Members of this House to decide the correct legislative proposal.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister cannot ignore the opinions of the people recommending it to him.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy must desist interrupting.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The last time that criminal procedure was amended in a major way was in 1967. There has been considerable change since 1967. I wonder if Deputies are aware that it is necessary, and accused persons can insist in this age of modern technology, that every word of their depositions be taken down in longhand. Now the reforming zeal of Deputies Higgins and Howlin extends to the maintenance of a procedure which would insist, as we enter the year 2000, on depositions being taken down in longhand. I do not know what the Deputies have against computers, that is a matter for them.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  That is patent nonsense.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  As we move to the issue of contempt for constitutional rights, nothing could be further from the truth. It is set out in this legislation that an individual who feels that there is not a case to answer, the documents having been served upon him or her, may apply to the court of trial and seek to have the case dismissed. What has changed? We are abolishing an outdated, arcane procedure which has no place in a modern corpus of criminal law in this State. I have no doubt of that. If I wanted further evidence, it is that only a minuscule number of cases in the Dublin Metropolitan District which come by way of preliminary examination to the District Court are dismissed at that point. I do not understand how anybody could make the argument that it is more expeditious and reasonable to proceed as we always proceeded just because that is the way it was done. That is not the way I do business.

On the question of the documents which will be served, there is a provision in the legislation to ensure the matter will be expeditious. It is provided in the legislation that documents must be served within 42 days. That speeds matters up considerably. I have given the matter deep consideration. This proposal is not only just and reasonable but it is necessary. Far from being a more expensive procedure it will be a far less expensive procedure for the simple reason that we will no longer have a continuous in and out to and from the District Court in relation to this matter.

The Opposition Members cannot have it both ways. They cannot state on television and on the [854] radio, which is the new mantra, that the Minister is not in control of his Department—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  It is a statement of fact.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  —and on the other hand say that the Minister should be controlled by committees, commissions and interdepartmental committees. The leader in this particular mantra is Deputy Rabbitte who, I understand, stated recently that the Minister is an able and compassionate man but he is not in control of his Department. Deputy Rabbitte is an able and compassionate man also but he is not in control of his tongue.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): Obviously the Minister is being briefed by the Government's media monitoring agency in relation to Deputy Rabbitte and Deputy Howlin. The bewildering logic of the Minister is mind-boggling. Obviously the rights of refugees or defendants before the courts do not figure high on the Minister's agenda. He has not even taken the trouble to read the report. He made the point that Deputy Howlin and myself are trying to insist that the old practice of taking depositions in longhand should be retained. If the Minister went to the trouble of reading the report of the committee, which was sent to his Department in February 1997, he would know that major reforms in taking of depositions were proposed. That is what should happen. The system should be changed.

The Minister told us on Committee Stage that he had read the report and accepted some of the arguments made by me and the late Deputy Upton but he took advice from other practitioners. Who are the other practitioners? I do not know of anybody who agrees with the proposal to do away with—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Like “Dev” the Minister looked into his heart.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  That might not be a bad idea.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  He would have to find it first.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): What is happening now is not acceptable. The preliminary hearing has always been an essential part of allowing defendants to gain timely access to the facts of the cases against them and empowering a judge to throw out manifestly weak cases, and it has served the system well. That is now at stake and it is particularly worrying because this extends the anti-defendant agenda to all defendants, rather than just to drug barons. We want to deal harshly with drug barons but everybody now appearing in court will find themselves deprived of the right of preliminary hearings. The abolition of the preliminary hearing is another attack on legal protection for suspects and defendants and on the discretionary powers of judges. That is fundamentally wrong. Rather than doggedly bull[855] dozing ahead with this measure the Minister should think again because time will prove that it is foolhardy and tampers with the fundamental rights of defendants.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister will eventually learn that simply being dogged on a matter does not mean he is right. Everybody is out of step but the Minister. He should examine his conscious and not dismiss as another quango or another committee eminent personages including Supreme Court and High Court judges and Members and former Members of this House in the way he does, and he should not insist that everybody is wrong except him. The Minister seems to have the notion that we cannot examine any report. Apparently any report commissioned by the former Minister, Deputy Owen, will not be examined. That is a peculiar prejudice on the part of the Minister and it is a damaging one in terms of reaching proper conclusions.

An hour or so ago I asked the Minister when there would be comprehensive video and audio recording of the questioning of accused persons and he said he had set up a committee to examine the issue. Now the Minister is saying a committee is not acceptable and he will decide all. The Minister cannot have it both ways. If a committee has to be set up to decide how to install technology into Garda stations, surely the voice of a distinguished committee on the fundamental matter of the rights of accused persons should also bear with the Minister in some way. The Minister should not dismiss us because we want to retain something that is valuable.

There are many valuable legal precepts going back over 300 or 400 years. The Minister might accept that the issue of habeas corpus is an important concept in law, although the administration of habeas corpus leaves a great deal to be desired, judging by a reply to a parliamentary question yesterday. No doubt that issue will be revisited on another occasion. These old concepts are important and I join Deputy Higgins in counselling the Minister to think again on this important issue. The Minister said my amendment No. 19, was not necessary. Necessary or not, it is an additional safeguard I ask him to include in the legislation.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I am as concerned about the rights of refugees as I am about the rights of accused persons. What I am proposing is not prejudicial to accused persons. The book of evidence sets out the case against the accused. The preliminary examination is not necessary for this purpose. Deputy Howlin misinterpreted my views on the committee's report. I did not say that all committees are useless. I said I dis[856] agreed with the findings of this committee's report. I doubt if Deputy Howlin, when he was Minister for Health and Minister for the Environment, agreed with every report he received. I am sure if he did not agree with a report, he would be the first not to accept it. There is nothing unusual in my not agreeing with the report. I do not agree with it and therefore I do not intend to retain an archaic system which has outlived its usefulness to criminal procedures.

There is no question of any individual's constitutional rights being abrogated in any way by this measure. That argument does not stand up. I am trying to achieve an improvement in the hearing of criminal trials. It is true that preliminary examinations are delaying trials. If I move, as I will, to abolish these preliminary examinations which, for the most part, are a wasteful exercise, it will mean that criminal trials will be heard more expeditiously. That is part of my plan for the criminal justice system. I have a fairly straightforward jigsaw of thoughts to put together in order to complete my plans. Once trials are processed more expeditiously, the Courts Service Board and the Prisons Authority are in place and new prison spaces are provided, we will have a reformed criminal justice system as we enter the new millennium.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): We are all in favour of a reformed system. We want to update procedures and ensure that we do whatever is possible to improve the criminal justice system and the courts system. However, the preliminary hearing has been a fundamental part of our court procedure. I support the elimination of time wasting procedures and the unnecessary attendance of gardaí in courts. This issue goes to the heart of the criminal justice system, due process and the protection of the rights of citizens who find themselves before the courts. This proposal is a serious infringement of fundamental rights which have been protected by preliminary trial proceedings.

No one wishes the Minister to be controlled by committees. However, I do not understand why he will not have recourse to the measured advice of the expert committee which reported to his predecessor, Deputy Owen, and which was on his desk when he took office. Why did he not debunk a foolhardy proposal which formed part of his zero tolerance proposals? These proposals included the elimination of pre-trial proceedings, mandatory minimum sentencing and whatever else he wished to add to the stew which formed part of his manifesto and to which he has credited so much of the Government's electoral success.

Question put: “That the woers proposed to be deleted stand.”

[857]

Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Ardagh, Seán.
Aylward, Liam.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
de Valera, Síle.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Foley, Denis.
Fox, Mildred.
Hanafin, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
[858] Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael.
Kitt, Tom.
Lawlor, Liam.
Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGennis, Marian.
Molloy, Robert.
Moloney, John.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Kennedy, Michael.
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, Richard.
Burke, Ulick.
Clune, Deirdre.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Finucane, Michael.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Gormley, John.
Hayes, Brian.
Higgins, Jim.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McCormack, Pádraic.
McDowell, Derek.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Olivia.
Naughten, Denis.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Perry, John.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Ring, Michael.
Sargent, Trevor.
Sheehan, Patrick.
Stanton, David.
Timmins, Billy.
Yates, Ivan.

Question declared carried.

Amendment declared lost.

Bill recommitted in respect of amendment Nos. 15 to 18, inclusive.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 15:

In page 10, lines 16 and 17, to delete “the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

[859] Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 16:

In page 10, lines 18 and 19, to delete “either the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 17:

In page 10, lines 26 and 27, to delete “the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 18:

In page 10, lines 32 and 33, to delete “the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

Amendment agreed to.

Amendments reported.

Acting Chairman (Mr. McGrath): Information on Paul McGrath  Zoom on Paul McGrath  Amendment No. 19 has already been discussed with amendment No. 14.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 19:

In page 11, line 35, after “section 4B(1),” to insert “but as soon thereafter as it is practicable to do so,”.

I am gravely disappointed that this very minor additional safeguard will not be accepted by the Minister.

Amendment put and declared lost.

Acting Chairman:  Amendment No. 20 has already been discussed with amendment No. 1.

Bill recommitted in respect of amendment No. 20.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 20:

In page 12, between lines 38 and 39, to insert the following:

“(b) In paragraph (a) “oral evidence” includes–

(i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, or

(ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under section 4F.”.

Amendment agreed to.

[860] Amendment reported.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 21:

In page 12, to delete lines 50 and 51, and in page 13, to delete lines 1 to 10.

The purpose of this amendment is to delete the power to appeal the acquittal of the accused to the Court of Criminal Appeal. This is a major change in the criminal justice system as up to now an acquittal could be appealed. The section provides a fundamental change in the law, which is a very undesirable, and merits very careful consideration. There are a number of basic principles of double jeopardy, etc. The notion is that once a person has been before a court and acquitted that is the end of the matter. I would have grave concern if that element of the Bill was passed without challenge. I was not involved in the debate on Second and Committee Stages, but I am at a loss to know why the Minister wants to make such a fundamental change in the code of criminal law. It is a significant change in the criminal justice system and one which I certainly cannot support.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The amendment is designed to remove the right of the Director of Public Prosecutions to appeal against the decision of the trial court on the application of the accused to dismiss the charge against him or her. Currently, if the District Court, having conducted a preliminary examination, decides a sufficient case is not disclosed to put the accused on trial it can discharge the accused. In these circumstances the Director of Public Prosecutions would have the option to have the decision reviewed in a higher court. Subsections (7) and (8) of section 4E, the subsections the Deputy wishes to delete, give the DPP the right to appeal to the Court of Criminal Appeal against a decision of the trial court to dismiss the charge. The subsections are in effect simply providing in the Bill the right for the DPP to have the earlier decision reviewed in the Court of Criminal Appeal. It will be for that court to decide whether the earlier decision should stand or whether the trial of the accused should proceed. Given that subsections (7) and (8) represent a continuation, albeit in a different form, of the existing right of the DPP in relation to a decision to dismiss a charge, I must reject the amendment.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I expected a fuller explanation as to why this is the case. It provides for a fundamental change in criminal law. There must always be a presumption of innocence until there is compelling evidence to the contrary, and the idea that a court decision that there is insufficient evidence to convict can be appealed is a very worrying development. I thought the Minister would have provided a better defence of his position. I hope he will provide such a defence to convince me of the necessity of the change he is suggesting which is part of a process, evident in the Bill, of eroding citizens' rights. Potentially any of us could appear [861] before the courts. While we want desperately to ensure that people guilty of serious offences such as those covered in this Bill spend a long time behind bars, we also want to ensure that nobody innocently ends up behind bars. We should insert provisions which protect the safeguards that have long been an established part of our law. Whatever the background in terms of ensuring we present a very tough face to the criminal we should not compromise on citizens' rights and the protection of the accused.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I support the thrust of the argument made by Deputy Howlin. We are talking about another fundamental erosion of something which has previously been enshrined in legislation. Given that we are dealing with a fundamental issue one would have expected that the Minister would have fleshed out in greater detail the rationale behind the proposal. However, he has not done so. The House has a responsibility to demand clear, cogent, comprehensive and well argued reasons for changing something so fundamental.

Acting Chairman:  Is the Deputy pressing the amendment?

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Is there a possibility that the Minister might at least argue his case more —

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It is not a fundamental change. I oppose the amendment as the new provision is merely a continuation of the current procedure in a different form. A decision to dismiss a charge, dealt with in section 4E, is not an acquittal as the Deputy contends. Therefore, there is no question of a fundamental change in procedure. The current position is that a District Court can discharge an accused person if it decides there is an insufficient case. The Director of Public Prosecutions is entitled to appeal that decision to the next highest court. The new procedure will allow the accused to go to the court of trial and seek to have the charges dismissed on the basis that a sufficient case has not been set out. The court may discharge the accused and the DPP, instead of appealing to a court higher than the District Court, will now appeal to a court higher than the court of trial, namely, the Court of Criminal Appeal. There will be a parallel procedure, albeit in a higher court, and there is no question of an individual's constitutional rights being abrogated in any way, which would be the last thing I would seek to do.

Amendment put and declared lost.

Acting Chairman:  Amendment No. 22 has already been discussed with amendment No. 1.

Bill recommitted in respect of amendments Nos. 22 and 23.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 22:

[862] In page 13, to delete lines 11 to 50, and in page 14, to delete lines 1 and 2 and substitute the following:

“4F.–(1) At any time after the accused is sent forward for trial, the prosecutor or the accused may apply to the trial court for an order requiring a person to appear before a judge of the District Court so that the person's evidence may be taken either—

(a) by way of sworn deposition, or

(b) in case the person's evidence is to be given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, through such a link,

whether or not the person's name appears in the list of witnesses served on the accused under section 4B or 4C.

(2) If satisfied that it would be in the interests of justice to do so, the trial court may order a person who is the subject of an application under subsection (1) to attend before a judge of the District Court in the district court district—

(a) in which the offence was committed, or

(b) in which the accused was arrested or resides,

so that the judge may take the person's evidence accordingly.

(3) The following rules shall apply to the taking of evidence under this section–

(a) when the evidence is being taken, both the accused and a judge of the District Court shall be present;

(b) before it is taken, the judge shall inform the accused of the circumstances in which it may be admitted in evidence at the accused's trial;

(c) the witness may be cross-examined and re-examined;

(d) where the evidence is taken by way of sworn deposition, the deposition and any cross-examination and re-examination of the deponent shall be recorded, read to the deponent and signed by the deponent and the judge.

(4) A judge of the District Court shall have the same powers for–

(a) enforcing compliance by a prospective witness with this section or with an order under this section, and

(b) securing the attendance of the accused,

as the District Court has in relation to witnesses in criminal proceedings.”.

[863] Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 23:

In page 14, to delete lines 3 to 16 and substitute the following:

4G.–(1) A deposition taken under section 4F may be considered by the trial court on an application under section 4E(1).

(2) Such a deposition may be admitted in evidence at the trial of the accused if it is proved that—

(a) the witness–

(i) is dead,

(ii) is unable to attend to give evidence at the trial,

(iii) is prevented from so attending, or

(iv) does not give evidence at the trial through fear or intimidation,

(b) the accused was present at the taking of the evidence, and

(c) an opportunity was given to cross-examine and re-examine the witness;

unless the court is of opinion that to do so would not be in the interests of justice.

(3) Subject to section 16 (admissibility at trial of videorecording of evidence given by witness under 17) of the Criminal Evidence Act, 1992, a videorecording of evidence given through a live television link in proceedings under section 4F shall, if the accused was present at the taking of the evidence and an opportunity was given to cross-examine and re-examine the witness, be admissible at the trial of the offence with which the accused is charged as evidence of any fact stated therein of which direct oral evidence by the witness would be admissible, unless the court is of opinion that in the interests of justice the videorecording ought not to be so admitted.

Amendment agreed to.

Amendments reported.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 24:

In page 16, line 17, after “oath” to insert “or affirmation”.

This amendment is simply designed to make it clear that the court can receive evidence on affirmation as well as under oath. I anticipate the Minister will react to this amendment as he did to others by saying it is unnecessary. However, it would be no harm to include the amendment to avoid doubt.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The section to which this amendment relates is that which provides for the issue of witness orders. Where the court is satis[864] fied by evidence given on oath that a person is unlikely to comply with a witness order, it has power to compel compliance. As Deputy Howlin said, his amendment is designed to put it beyond doubt that such evidence may also be given by affirmation. I appreciate Deputy Howlin's intention, but I cannot accept the amendment—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Why?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  —because the matter is already covered by the interpretation Act of 1937 which provides for the—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister could accept it for the sake of generosity.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  — interpretation of expressions and words contained in Acts of the Oireachtas as set out in the Schedule to the Act. Paragraph 20 of the Schedule states that the word “oath” in the case of persons for the time being allowed by law to affirm instead of swearing includes affirmation. Paragraph 31 provides that the definition of the word “swear” includes “affirm”. Under the Oaths Act, 1888, any person who objects to being sworn is permitted to make a solemn affirmation instead of taking an oath. The Deputy's amendment is, therefore, unnecessary. It might create confusion or uncertainty to include it in the Bill since other Acts already do so.

I am aware that the Law Reform Commission has reported on the matter. It would be best to deal with it in the context of any reform of the law relating to oaths and affirmations generally. I cannot, therefore, accept the amendment.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Uniquely, the Department of Justice, Equality and Law Reform must find a reason to say “no” and reject the mildest and most innocuous of amendments. The Minister has a responsibility to the House to say, “That is a load of nonsense.” I have received umpteen recommendations that the matter is already covered in the Interpretation Act. Acts and Bills should be able to be read as stand-alone documents by ordinary citizens. The words “oath” and “affirmation” should be included to avoid confusion and the need to consult the Interpretation Act. The purpose of the amendment is to ensure clarity.

The notion that some reason must be found to say “no” on every issue undermines due process in the House. Rather than listen to arguments, no matter how well or badly made, and make up his mind on their merits the Minister provides his prepared notes for rubber-stamping. I ask him to reconsider, if only to acknowledge that the House has a function other than to rubber-stamp the notes prepared in the Department of Justice, Equality and Law Reform.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I have operated for most of the afternoon without notes.

[865]Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister read the same ones twice.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The amendment is unnecessary. It is not the function of the House to bring forward legislation to make something clearer.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  That is an amazing statement. It is done in consolidation Bills all the time.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It is clear that it is already included in legislation. Why would I want to make it any clearer? That is tautolgy of the worst kind.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  It is not clear.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It is included in the Interpretation Act. It is like saying that I went to bed last night and had better sleep again last night. It is nonsense.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins   (Mayo): The Minister is not doing himself any favours in adopting this attitude. He commented that it is not the function of the House to bring forward legislation to make something clearer. Has he thought this through or was it off the top of the head?

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  He should withdraw it.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I will not.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): We have been dealing with substantial issues since 10.30 a.m. relating to the Constitution, the criminal justice system, the courts and the rights of citizens. Deputy Howlin and I have attempted at length to get the Minister to see the logic of our arguments in three or four areas where he has decided to introduce fundamental changes which were part of a mission statement compiled in opposition.

The Minister will not accept the thrust of any of our arguments. The amendment is logical. Deputy Howlin wishes to include the words “or affirmation” to put the matter beyond yea or nay. Even if it is unnecessary or superfluous, for once the Minister should cease to be the prisoner of his Department and be his own man.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  One cannot legislate with gestures.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister should act as such, not as a cipher.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): Without referring to his notes and as a gesture, the Minister should show independence of spirit and thought by accepting at least one amendment.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister is deaf to the will of the Oireachtas. This should be a chamber where the voices of all Members are weighed. Everything should not be decided in the Department before the Minister comes to the House and reads [866] his prepared notes. This is a minor amendment. We have a duty to prepare laws that are accessible to the citizen. The purpose of consolidation Acts is to ensure clarity. The Minister is the prisoner of his Department; he is not his own man. He is not free to make the most minor of decisions not sanctioned in advance.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  By me.

Amendment put and declared lost.

Bill recommitted in respect of amendment Nos. 25 to 30, inclusive.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 25:

In page 18, lines 42 and 43, to delete “the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 26:

In page 19, lines 4 and 5, to delete “the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 27:

In page 22, between lines 6 and 7, to insert the following:

“(3) Section 13(1) of the Act of 1992 is hereby amended by the insertion, after 'proceedings', of ‘(including proceedings under section 4E or 4F of the Criminal Precedure Act, 1967)'.”.

The amendment clarifies the relationship between the new Part 1A of the Criminal Procedure Act, 1967, and the television link provisions of the Criminal Evidence Act, 1992. Section 13 of the 1992 Act permits evidence to be given through a live television link in proceedings for sexual and violent offences. It must be the case that a witness entitled to give evidence through a live television link at trial should be equally entitled to do so at hearings prior to trial, namely, hearings under section 4E, application for dismissal of charge, and section 4F, taking of depositions in District Court, which are being inserted by this Bill in the Criminal Procedure Act, 1967. The amendment makes it clear that this is intended by specifying the word “proceedings” in section 13 of the 1992 Act includes proceedings under sections 4E and 4F.

I hope Opposition Deputies will be in a position to accept the amendment. I am beginning to find their arguments incongruous. On the one hand, they are telling me that I should not bring forward a Bill that I drafted in opposition and, on [867] the other, that the Bill is under the control of the Department.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Bill is not, the Minister is.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  They also tell me that I am not listening to committees. When I tell them that I do not agree with the committees they tell me that I am doing what the committees want. This circuitous line of argument, which would be more at home in a maze, does the Deputies no credit. As they are well aware, most of the arguments I have made have been made off the top of my head and clearly.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 28:

In page 22, lines 11 and 12, to delete “the Director of Public Prosecutions or the Attorney General” and substitute “the prosecutor”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 29:

In page 22, line 29, to delete “the prosecution” and substitute “the prosecutor”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 30:

In page 23, to delete lines 7 to 9 and substitute “in proceedings under Part 1A of the Criminal Procedure Act, 1967, and', and”.

Amendment agreed to.

Amendments reported.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 31:

In page 23, to delete lines 35 and 36.

This is a drafting amendment which deletes section 23(2) which states that reference in section 23(1) to “this Part” means Part III of the Bill. The draftsman has advised there is no necessity for section 23(2) since the contents of section 23(1) make clear the reference is to the Bill. If something is made clear, it need not be legislated for again. There is no such thing as legislating in duplicate. It does not happen in any parliament and it would a poor day for the legislative process if we started doing so. It would create considerable confusion and havoc in the system. It is unfair for Deputies to constantly badger my officials for doing their job well.

Amendment agreed to.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 32:

In page 26, lines 33 and 34, to delete “, if it considers it appropriate to do so,”.

[868] This amendment relates to Part V and deals with guilty pleas. Section 29(1) reads:

In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account–

The effect of the amendment would be to ensure a court always gives full weight to a guilty plea by deleting what is in essence a let-off clause for a court. There has always been a strong practice of weight and value being given to a guilty plea. It was not a matter of it being an optional issue but that it was understood that, for the fair and efficient administration of justice, there would be an incentive for defendants, where they were obviously guilty, to plead such. That element of discretion, “if it considers it appropriate to do so”, should be deleted so that, in all cases, a court would give full weight to a guilty plea.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I agree with the thrust of Deputy Howlin's argument. The criminal justice system depends to a large extent on a significant number of defendants pleading guilty. It is not that we want anyone who is innocent to plead guilty, but it is recognised that, if a substantial number of people did not enter guilty pleas, the court system would quickly clog up. For that reason, courts have always been benignly disposed to giving credit to guilty pleas whenever a defendant's motivation for pleading such is clear. If defendants feel they have nothing to gain from entering a guilty plea, they may decide to opt for trial, as they are constitutionally entitled to do. As a result, there is always the possibility they will be acquitted or that a jury will fail to agree. This happened in recent cases after a considerable length of time and at considerable cost leading to a new trial. The system will suffer as a result.

One of the major advantages of a guilty plea, especially in the case of sexual offences, is that it saves the victim from the trauma of having to give evidence. On that score, I welcome the provision of section 29(1) which allows a court to vary the amount of credit given for a guilty plea at the time it was entered. It can greatly help a victim to know at an early that she or he will not have to give evidence in a contested trial. However, the part of the section which states in clear terms, “...a court, if it considers it appropriate to do so, shall take into account...” should be deleted. There should be full recognition at all stages if someone decides to do what they believe is the correct thing and pleads guilty rather than having a contested trial. The phrase, “if it considers it appropriate to do so”, should be deleted thereby ensuring the section would read:

In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court shall take into account–

[869] (a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

(b) the circumstances in which this indication was given.

Simpliciter.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  This is another historic section in an historic Bill. The amendment relates to section 29 which sets out on a statutory basis for the first time in criminal law how guilty verdicts are to be dealt with by the courts. Section 29(1) provides that:

In determining what sentence to pass on a person who has pleaded guilty to an offence...a court, if it considers it appropriate to do so, shall take into account–

(a) the stage in the proceedings...at which the person indicated an intention to plead guilty, and

(b) the circumstances in which this indication was given.

The effect of the amendment would be to remove the words “if it considers it appropriate to do so”. In other words, a court would have to have regard to the factors at (a) and (b) in all circumstances, that is, the stage in the proceedings at which the person indicated an intention to plead guilty and the circumstances in which the indication was given.

The inclusion of the words “if it considers it appropriate to do so” is considered desirable so as not to make it an absolute requirement of all courts to take such matters into account regarding all offences. This is for the practical reason that the provision relates to all offences. For example, it would hardly be necessary or desirable for a court to examine these matters for routine road traffic offences. If the amendment were passed and a person were before the District Court on a routine traffic offence, the court would have to take into account the fact that the person indicated an intention to plead guilty at a certain stage and the circumstances in which the indication was given. No one would argue for that.

Case law already exists on when it is appropriate for the courts to take guilty pleas into account. While the proposed section places aspects of that law on a statutory basis, it is unlikely to supplant that case law to the extent it already deals with when it is appropriate to take into account guilty pleas. In that sense, the point of the amendment is already met by law. The amendment would require a court to take into account guilty pleas, especially the circumstances in which they were made, in the most routine of cases, and no benefit would be gained from that. On the contrary, it might needlessly clog up the operation of the courts. In the circumstances, I am not disposed towards accepting the amendment.

[870]Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I do not agree with the Minister's logic but that will not come as a surprise. The focus should not be on minor cases in the lower courts where such consideration might be inappropriate. The more salient point would be that it should always be taken into account in serious offences in the higher courts. If there is not a positive incentive for people to plead guilty where appropriate, that will clog up the system. Since I did not manage to convince the Minister, I will press the amendment.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): The Minister is giving with one hand and taking with the other. I do not know why he does not leave well enough alone. We are trying to provide people with a reasonable inducement to plead guilty in appropriate cases. By including “if it considers it appropriate to do so”, he is removing the certainty that a discount will be given. Why is there a need to remove that certainty? If it is removed, the Minister also removes a considerable amount of the attraction and inducement of a guilty plea.

The Minister is trying to address a problem arising from a Supreme Court judgment in the case of the DPP v. G. in which it was held that it was wrong in principle to impose the maximum sentence when the defendant had pleaded guilty. The court's reasoning was based on the principle of the interests of the victim. In view of this I ask the Minister to rethink the wisdom of allowing section 29(1) to stand. I support most of the thrust of what is being proposed, but removing the certainty of giving a dividend or a discount following a guilty plea will cause damage and will take away from the spirit of what is a well intentioned section.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The amendment proposes that the courts be obliged in minor matters to take into account the stage at which the indication to plead guilty was given and the circumstances in which it was given. If this was to be accepted the courts would become clogged up. It would make no sense to do that.

Deputy Higgins says I should leave well enough alone. If I did so I would not have bothered to introduce this legislation. Well enough is not good enough.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister has not made a clear case for rejecting the amendment. I do not accept this deletion would clog up the system since it is the status quo. Consideration and weight is given to this aspect and it would take a judge approximately five minutes to consider matters in the instances outlined by the Minister. In view of this his contention does not hold up. The amendment is correct and safe and I intend to press it.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): What is the Minister's attitude to the Supreme Court judgment to which I referred which held that it was wrong in principle to impose the maximum sentence when the defendant had pleaded guilty? When I refer to [871] leaving well enough alone I mean that while the section is good and commendable – I support it – I am concerned at the proposal to remove the element of certainty that should apply to all guilty pleas. The Minister's proposal dilutes considerably the degree of certainty with regard to making allowances for such pleas.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I move amendment No. 33:

In page 29, line 16, to delete “resolutions” and substitute the following:

“resolutions:

Provided that no such resolutions may continue section 9 in operation unless provision is made to the effect that failure to comply with that section (or the fact (if it be a fact) that criminal proceedings in relation to a serious offence within the meaning of that section have not been brought or concluded as the case may be) shall not prejudice the institution or prosecution of civil proceedings arising from the circumstances of the commission of the offence concerned”.

I understood that this was raised by my late colleague, Pat Upton, on Committee Stage. The purpose of the amendment is to overcome a matter that was overlooked during the passage of the Offences against the State (Amendment) Act, 1998.

It was argued on Committee Stage that the new section on withholding information with regard to serious offences is very broad. For example, where a plaintiff wants to bring a claim for damages in relation to an assault he or she could be prejudiced by the section if he or she failed to report the assault to the Garda Síochána at the earliest opportunity. That would be grossly unfair in many cases.

I understood the Minister promised my late colleague he would look at this matter and return to it on Report Stage. However, since an amendment in his name did not appear on the Report Stage amendment list I saw fit to resubmit the amendment my late colleague had submitted on Committee Stage. I hope the Minister, by not submitting his own amendment and accepting the thrust of the late Pat Upton's argument on Committee Stage, has decided to accept this amendment.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  This matter was raised by the late Pat Upton. The amendment put down by him on Committee Stage also raises an issue with regard to section 9 of the Offences against the State (Amendment) Act, 1998. It arises from a concern that the offence of withholding information contained in the 1998 Act may have [872] adverse implications in relation to tort law. The fear is that failure to comply with a statutory obligation to report an offence might prejudice a person in civil proceedings arising from the facts of the offence.

On Committee Stage I said that the amendment raised complex issues and required further investigation, including consultations with the Attorney General and I undertook to consult with him before Report Stage. Section 3 of the Criminal Law Act, 1997, abolished the distinction between felony and misdemeanour. In consequence, the common law offence of misprision of felony was also abolished. However, the Act created offences of assisting offenders – section 7 – and concealing an offence – section 8.

The proposed amendment raises the question of whether an offence similar to that of the former offence of misprision of felony was created by statute. I have had the matter examined in consultation with the Attorney General and I am satisfied that section 9 does not present the problem which the Deputy contends.

Section 9 of the Offences Against the State (Amendment) Act, 1998, created an offence of withholding information. Under the section it is an offence for any person who has information which the person knows or believes might be of material assistance in preventing the commission of a serious offence or in securing the apprehension etc., of a person who commits a serious offence and fails without reasonable excuse to disclose it to the Garda. I cannot see how the section could be relevant to civil proceedings in the way the amendment seeks to suggest.

With regard to the question of the civil and criminal proceedings arising out of the same act or omission, there is a well established procedure that the criminal proceedings must be concluded before the civil proceedings can be considered by a court. In this regard, section 9 of the 1998 Act does not change the position.

The other issue it raises is whether a person would be prejudiced in civil proceedings for failure to comply with the provisions of section 9. That section has no relevance to civil proceedings. In any event, it would appear to be a matter for the courts to decide whether, on public policy grounds or otherwise, a person who had been found not to have complied with the provisions of section 9 should be enabled to institute or to maintain civil proceedings arising out of the same circumstances.

While I cannot accept the amendment I wish to acknowledge that this point, which was raised by the late Pat Upton, was one of great complexity and would have required explanation at some future time. In that respect, I am grateful for the fact that it was put down.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I thank the Minister for his reply. As he said, it is a complex matter and on legal advice the danger that presented itself needed to be examined. If the Minister has taken the advice of the Attorney General, has taken time to weigh [873] the possibilities and has concluded that the legislation is safe without the amendment I will accept his argument, provided the civil proceedings that might arise from the example I have given, covering matters such as a claim for damages arising out of an assault which was failed to be notified to the Garda, would not be prejudiced by such failure. In view of this I will withdraw the amendment.

Amendment, by leave, withdrawn.

Bill recommitted in respect of amendments Nos. 34 to 37, inclusive.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 34:

In page 29, after line 30, to insert the following:

“39.–(1) Subject to subsection (2), in any proceedings on indictment for an offence (including proceedings under Part 1A of the Act of 1967) a person other than the accused may, with the leave of the court, give evidence through a live television link.

(2) A court shall not grant leave under subsection (1) unless it is satisfied that the person is likely to be in fear or subject to intimidation in giving evidence otherwise.

(3) Evidence given under subsection (1) shall be videorecorded.

(4) In any proceedings referred to in subsection (1) in any circuit or district court district where the court is satisfied that leave should be granted for evidence to be given through a live television link pursuant to subsection (1) but the necessary facilities for doing so are not available in that circuit or district, the court may by order transfer the proceedings to a circuit or district court district where such facilities are available and, where such an order is made, the jurisdiction of the court to which the proceedings have been transferred may be exercised–

(a) in the case of the Circuit Court, by the judge of the circuit concerned, and

(b) in the case of the District Court, by the judge of that court for the time being assigned to the district court district concerned.

(5) Where evidence is given by a person (‘the witness') through a live television link pursuant to subsection (1)–

(a) in case evidence is given that the accused was known to the witness before the date on which the offence in question is alleged to have been committed, the witness shall not be required to identify the accused, unless the court in the interests of justice directs otherwise, and

(b) in any other case, evidence by a person other than the witness that the witness [874] identified the accused as being the offender at an identification parade or by other means shall be admissible as evidence that the accused was so identified.

(6) This section is without prejudice to any other enactment providing for the giving of evidence through a live television link.”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 35:

In page 29, after line 30, to insert the following:

“40.–(1) A person who without lawful authority makes enquiries or takes any other steps whatever, whether within or outside the State, for the purpose of discovering–

(a) the whereabouts of a person whom he or she knows, or reasonably suspects, to be a relocated witness, or

(b) any new name or other particulars related to any new identity provided for such a witness,

shall be guilty of an offence.

(2) A person who without lawful authority discloses, whether within or outside the State, to any other person any information (including information lawfully obtained pursuant to subsection(1)) concerning–

(a) the whereabouts of a person whom he or she knows, or reasonably suspects, to be a relocated witness, or

(b) any new name or other particulars related to any new identity provided for such a person,

shall be guilty of an offence.

(3) In this section ‘relocated witness' means any person who intends to give or has given evidence in proceedings for an offence and who as a consequence has moved residence, under any programme operated by the Garda Síochána for the protection of witnesses, to any place, whether within or outside the State.

(4) In this section ‘lawful authority' means the authority of–

(a) a court in any proceedings involving the relocated witness, or

(b) a member of the Garda Síochána not below the rank of chief superintendent.

(5) A court shall give authority pursuant to subsection (1) or (2) only if it is satisfied–

(a) that to do so would be in the interests of justice, and

(b) that another way of proceeding which would not prejudice the continued participation of the relocated witness in [875] the programme aforesaid, including, without prejudice to the generality of the foregoing, the transmission of any documents required to be served on the witness to the Commissioner of the Garda Síochána for the purpose of effecting such service, is not available.

(6) A person guilty of an offence under this section shall be liable–

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, and

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding five years or both.”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 36:

In page 29, after line 30, to insert the following:

“41.–(1) Without prejudice to any provision made by any other enactment or rule of law, a person–

(a) who harms or threatens, menaces or in any other way intimidates or puts in fear another person who is assisting in the investigation by the Garda Síochána of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, or a member of his or her family,

(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with,

shall be guilty of an offence.

(2) In this section, ‘potential juror' means a person who, at the time an offence under this section is alleged to have been committed, has been summoned for jury service but has not been empanelled as a juror to serve on a particular jury.

(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may be, that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the intention required by subsection (1)(b).

(4) In subsection (1) the reference to a member of a person's family includes a reference to–

(a) the person's spouse,

(b) a parent, grandparent, step-parent, child (including a step-child or an adopted [876] child), grandchild, brother, sister, half-brother, half–sister, uncle, aunt, nephew or niece of the person or his or her spouse, or

(c) any person who is cohabiting or residing with him or her.

(5) A person guilty of an offence under this section shall be liable–

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, and

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years or both.”.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 37:

In page 29, after line 30, to insert the following:

“42.–(1) In this section—

‘offence' means an arrestable offence as defined in section 2 of the Criminal Law Act, 1997;

‘prison' means a place of custody administered by the Minister for Justice, Equality and Law Reform;

‘prisoner' means a person who is in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise.

(2) A member of the Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that the following conditions are fulfilled—

(a) there are reasonable grounds for suspecting that the prisoner has committed an offence other than an offence in respect of which he or she is imprisoned;

(b) the arrest of the prisoner is necessary for the proper investigation of the offence which he or she is suspected of having committed;

(c) where the prisoner has previously been arrested for the same offence, whether prior to his or her imprisonment or under this section, further relevant information has since come to the knowledge of the Garda Síochána.

(3) A person arrested under this section–

(a) shall be taken forthwith to a Garda Station and may, subject to subsection (5), be detained there for such period as is [877] authorised under section 4 of the Act of 1984, and

(b) shall, subject to this section, be dealt with as though he or she had been detained under that section.

(4) Sections 4(4), (5), (5A) and 10 of the Act of 1984 shall not apply to a person arrested and detained under this section.

(5) If at any time during the detention of a person under this section there are no longer reasonable grounds for–

(a) suspecting that the person has committed the offence in respect of which he or she was arrested under this section, or

(b) believing that his or her detention is necessary for the proper investigation of that offence,

the detention shall be terminated forthwith.

(6) On termination of the detention in accordance with subsection (5) or by reason of the expiry of the period referred to in subsection (3)(a), the member of the Garda Síochána in charge of the Garda Station where the person is detained shall transfer him or her, or cause him or her to be transferred, forthwith back into the custody of the governor of the prison where the person was imprisoned at the time of the arrest.

(7) This section shall not prejudice any power conferred by law apart from this section in relation to the arrest, detention or transfer of prisoners.”.

Amendment agreed to.

Amendments reported.

Bill reported with amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  This is historic legislation. It will be invaluable in the fight against drugs for many years to come. It is radical, innovative legislation appropriate to the new millennium. It removes old and tired procedures from the Statute Book and introduces innovative changes to our criminal procedures. It introduces mandatory sentencing in respect of serious drug trafficking and, to that extent, it will be a valuable tool to the law enforcement agencies.

I thank the Opposition spokespersons, Deputy Jim Higgins of the main Opposition party and Deputy Howlin of the Labour Party, for their constructive and at times robust contributions. No doubt a great deal of deliberation and consideration was given to the various amendments tabled.

Deputy Howlin comes late to the legislation and, therefore, he did not see any amendments [878] being accepted today. I assure him, despite any impression he may have to the contrary, that I am disposed towards accepting Opposition amendments and have done so in the past.

I pay tribute to the contribution to the Bill made by the late Deputy Upton. He tabled many outstanding amendments and made a telling contribution. His contribution is very much alive in the body of this legislation.

I thank the officials in my Department who work extremely hard and, like me, often must suffer criticism just because we are in the Department of Justice, Equality and Law Reform.

I thank you, Acting Chairman, and all of the chairpersons throughout the debates, the staff of the House and the media for the coverage which they have given this worthy legislation.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I enjoyed the debate. I did not regard it as tortuous. There was one day for Second Stage, two days for Committee Stage and one day for Report Stage. The blame for it taking from 1997 until 1999 does not rest with the Opposition. I appreciate that at a certain stage the Minister had to put on the brakes in respect of enhancing the Bill by introducing much needed sections dealing with the area of witness protection in the wake of the tragic death of Garda Jerry McCabe and the almost equally tragic fallout from his court case when the plea had to be reduced from capital murder to manslaughter. The enhancement of the witness protection programme is something to which we all subscribe. I greatly welcome the Minister's introduction of the live television link for witnesses who are in fear of being subject to intimidation.

Our objections and reservations on the other elements of the Bill have been well put in the House. Essentially, they revolve around the impossibility of determining the market value of drugs – the £10,000 issue; the mandatory minimum sentencing; preliminary hearings; and diluting to some extent a vital element of the guilty plea procedure.

I thank everybody involved. I pay tribute to the Minister and his officials. Unfortunately he was not receptive to many of the arguments put forward but he listened to what we had to say. Last, but by no means least, I thank the officials of the House. The future of this Bill will remain open to question and possibly challenge in the courts.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I am glad I came late to this Bill. I think I got the better part of it. The amendments the Minister introduced on Report Stage to safeguard witnesses, combat intimidation, protect jurors, allow for taped evidence and the use of a television link for the giving of evidence from persons not directly in the court improved the Bill. All of these things are good and I welcome them. We look forward to the provision of resources and the practical implementation of them on a countrywide basis not merely on the basis of the two courts which currently have such facilities in the metropolitan area in Dublin.

[879] With regard to the parts of the Bill with which I disagreed, that is why I said I am glad I came late to the Bill because I would have had more to disagree with on Second and Committee Stages than I did on Report Stage. I argued that there are major flaws in the Bill. The provision of mandatory sentencing is wrong in this matter. I argued that it will present difficulties for law officers whose judgment on the value of drugs seized will be extremely onerous as the sentence will hang on this judgment. It could make a significant difference. That valuation will be a crucial part of a case and I counsel the Minister that it will be tested in the courts. Ultimately we will see how fair is the Minister's commitment.

I do not doubt the Minister's commitment. He is well motivated to put on the Statute Book a Bill of substance which he feels is the best answer to the scourge of serious drug abuse which unfortunately is prevalent not only in this city but in communities up and down the country. I cannot fault him for that. He is convinced the measure he steered through the House over a long period will be an effective answer. I hope he is right ultimately. I have not changed my view but, since we are at the conclusion of the debate, I hope his objective will prove to be achieved by it.

I commend the Minister's officials. Officials in every Department have a job to do. More often than not, they would like to be given the right to speak here on occasion. No doubt they would have something interesting to say. As a former colleague of mine used say, anybody can have that – all you need is 8,500 votes to put that right.

I believe in the processing of legislation. I like committee work and I like debate. I particularly like receptive Ministers who are open to persuasion. It annoys and irritates me when somebody comes in with a prepared answer and is inflexible. On this occasion I accept that the Minister said he is flexible. I look forward to the occasion, in the 31 Bills promised by his Department, when I can put that commitment to the test. I and everybody in this House wishes the objective of this Bill – the defeat of the gangsters who prey on people by pushing drugs – God's speed and great success.

Question put and agreed to.

Sitting suspended at 6.51 p.m. and resumed at 7 p.m.


Last Updated: 20/05/2011 18:36:02 First Page Previous Page Page of 144 Next Page Last Page