A Cheann Comhairle, from time to time this House is confronted with issues that go to the heart of our role as national legislators. On such occasions, a courageous response on our part can give leadership and can galvanise society into clear and determined action. The Criminal Justice Bill 2007, which I am pleased to introduce to-day, provides the House with an opportunity to send a clear and unambiguous message that, as a society, we are not prepared to allow organised criminal gangs set about the destruction of families and communities.

In October and following the enactment of the 2006 Criminal Justice Bill I said that I intended to examine broader issues in relation to the criminal law. I established the Balance in the Criminal Law Review Group under the chairmanship of Dr Gerard Hogan, SC on 1 November. I requested that Group to prepare an interim report on the right to silence at the beginning of February.

In December there were a number of serious atrocities including the murder of Alan Cuniffe and Anthony Campbell. It became clear that the criminal gangs believed they could act with impunity. The Government agreed a major package of anti-crime measures in mid- December.

These included:

 

I outlined that I would also bring a legislative package before this House. Over Christmas we worked on this package and published the scheme in early February with a view to enacting the legislation this session. The Bill was published last week and we now have three weeks at second, stage, committee and report to consider the Bill.

I acknowledge that the Bill I am introducing contains tough measures, but, as I have said on a previous occasion, the measures are both necessary and proportionate to the threat we face from organised crime. All of us, without exception, accept that we cannot tolerate the growing threat from that source. It is not a threat that is confined to certain areas around Dublin; it is a threat that, increasingly, we are facing in every part of the country and in every strata of society.

Although additional staffing and equipment are essential, it is equally important that our laws are capable of responding effectively and speedily to new patterns of crime. It is in that context that I bring forward the Criminal Justice Bill 2007. This Bill provides a very extensive updating of the law. As a result the law enforcement agencies will be in a much better position to react to the serious situation we face as a society.  

I will now give the House an outline of the Bill's main elements. The Bill has 51sections, in 9 Parts, with two schedules. Part 1 deals with standard items such as commencement and interpretation. Part 2 (sections 5 to 23) updates the law on bail. In a moment, I will deal more fully with sections 6, 7, 11 to 13 and 19 in particular. But first, I want to mention that the remaining sections in Part 2 introduce a number of important changes to the administration of the bail system, to permit, for example, the setting of non - monetary conditions in cases where that would be appropriate.

Section 6 provides that the applicant for bail may be required to provide a statement on his or her assets and income, as well as details of any criminal convictions and any previous bail applications. Section 7 provides that a Chief Superintendent may give his or her opinion that the applicant, if given bail, is likely to commit a serious offence and that the application should therefore be refused. Sections 11 to 13 provide that a person granted bail may be subject to electronic monitoring if the bail is conditional on the person being or not being in certain places at certain specified times. Section 19 provides the prosecution with a right of appeal against the grant of bail or in respect of any conditions attaching to bail, where it is granted. Such a right is not currently available to the prosecution. This section also allows the High Court to transfer bail applications to the Circuit Court in cases where the case is triable by the Circuit Court.  

The net effect of the changes being introduced by Part 2 is that the prosecution authorities will be in a position to mount a more effective challenge to bail applications where there is a likelihood of the applicant committing serious offences if given bail

Part 3 (section 24 and 25) deals with sentencing. Before I outline the nature of the proposed provisions I want to make a few general remarks on sentencing. When it comes to this issue my views are well established and were set out in a speech in 2004. I made the point that there has to be consistency in sentencing. When it comes to the mandatory minimum sentencing provisions applicable to Section 15A drug trafficking offences the will of the Oireachtas which is also the will of the Irish people must be given effect. It is not window-dressing. It should lead to a ten year sentence with seven and a half years being served taking account of remission for good conduct.

This is not disproportionate or arbitrary, it is a conservative measure to reflect the values of society and was put in place for the guidance of the judiciary and to deter people in the drugs trade from serving small sentences and resuming their criminal activities. Some people may argue that a statutory scheme is not necessary for consistency in sentencing for drug and firearm offences but if that was there would be no need for legislation. The fact is that the figures show that the policy has not been adhered to and that's why I've had to make it more explicit. I can't comment on individual cases and I don't intend to start doing so but people must be under no illusion that the people of Ireland expect coherent, rationale and consistent sentencing I the courts and if they don't see it this amounts to grave damage to the administration of justice. As I said in 2004 my preference lies in the development of an effective sentencing jurisprudence from the courts themselves and I reiterate my strong view that collectively and individually the independence of the judiciary is an important value which is enhanced rather than damaged by collective measures taken by the judiciary to ensure consistency, rationality and coherence in sentencing.

My view remains unaltered. I don't want to be forced down the continental or USA model where the legislature is forced to specify relatively inflexible sentences for every offence. To avoid this there is in my view a crying need for development of sentencing guidelines by the judiciary which are effective and are followed. It is not good enough to say that the DPP's right of appeal against judicial error in sentencing is sufficient to ensure consistency, coherence and rationality. I am strongly of the view that sentencing policy should be collectively formulated by the judiciary. I will give every backing through resources and legislation to achieve that end.

Section 24 provides that a person who commits any one of a list of scheduled offences and, within 7 years, commits another one of those offences will be subject to a penalty of imprisonment equal to at least three-quarters of the maximum laid down by law for that second offence. Where the second offence carries a potential maximum of life imprisonment, a sentence of at least 10 years must be imposed.

Section 25 provides that, upon release, a person who has been imprisoned for one of the scheduled offences may be subject to a 'crime prevention order'. It will require the person to observe any conditions laid down by the court: these may include a condition that the person must keep the Gardai informed of his or her movements. The order may last for up to 10 years or until the time when the maximum sentence for the offence, had it been imposed, would have expired.

The scheduled offences (in Schedule 2 of the Bill) are among the most serious known to the criminal law and include all the offences that are typically associated with gangland crime, including, of course, drug trafficking and firearms offences.

These provisions on sentencing are innovative. They reflect the need to find new ways to meet the challenge we face from organised crime.

Part 4 (sections 26 to 29) deals with the right to silence.  I will deal with sections 26 and 27 together. Section 26 inserts a new version of section 18 of the Criminal Justice Act 1984. Section 27 inserts a new version of section 19 of the 1984 Act. The provisions in sections 18 and 19, by virtue of coming under the 1984 Act, are applicable to all arrestable offences.  Under the current provision, inferences may be drawn only if it is the arresting Garda who asks the arrested person to account for, in the case of section 18, objects or marks or, in the case of section 19, his or her presence in a particular place, and the person refuses or fails to do so. This has proven to be a significant restriction on the operation of these sections.

Under the revised version now being proposed for both sections, any Garda who is questioning the suspect may ask him or her to account for the objects or marks, or, as the case may be, his or her presence in a particular place. A number of other changes are made that apply to both sections. It is proposed that the court may draw an inference only where the circumstances in question 'clearly' called for an explanation. The court may draw inferences in situations where it is determining whether the person is guilty or not or where it is considering an application for dismissal of the charge in the course of a trial, on the basis that there is no case to answer. An inference may be drawn only where it is or is capable of being treated as corroboration for any other evidence on the matter. A person may not, however, be convicted solely or mainly on an inference.

The court must not draw inferences unless it is satisfied the accused had been given a caution in clear terms and had access to a solicitor before failing or refusing to answer the question put to him or her by the investigating Garda. The court may take account of the point in time when the accused first gave an account in relation to the objects or marks or presence at the place. An electronic recording of the interview must be available before an inference is drawn, unless the accused had refused to have the questioning recorded.

The new sections provide that the arrangements they set out shall not prejudice the admissibility in evidence of the silence or other reaction of the accused in response to anything said in his or her presence relating to the conduct in relation to which he or she is charged, where evidence about that reaction would otherwise be admissible.

Similarly, both sect ions do not preclude the drawing of an inference from the silence or other reaction of the accused where an inference could be drawn other than on the basis of these sections. This is also the case in relation to a failure by the accused to account for an object of mark or the condition of clothing, where the inference could be drawn other than on the basis of section 18.

Section 28 inserts a new section 19A into the Criminal Justice Act 1984. Two points need to be made about section 19A. First, it relates to all arrestable offences. Secondly, it must be distinguished from sections 18 and 19 of the 1984 Act. Whereas section 18 deals with a failure to account for certain marks, substances or objects and section 19 deals with a failure to account for being in a particular place, section 19A will deal with a failure on the part of the accused to mention while being questioned particular facts that he or she later relies on in his or her defence. In all other respects, section 19A is to be applied in the same way as sections 18 and 19. For example, it must be a fact that 'clearly' called for explanation. In the same way as arose in sections 18 and 19, the failure to mention the relevant fact may give rise to an inference where it is or is capable of being treated as corroboration for any other evidence on the matter. However, the person may not be convicted solely or mainly on the inference alone. The safeguards in relation to access to a solicitor and electronic recording of the interview also apply.

Since the new section 19A, along with sections 18 and 19, have general application to all arrestable offences, it is no longer necessary to have more specific provisions. As a result, section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998 are being repealed. This is being effected by section 3 and Schedule 1 of the Bill. Section 7 of the 1996 Act and section 5 of the 1998 Act covered the same ground as the new section 19A, i.e. inferences that may be drawn from a failure by the accused to mention particular facts, but those sections applied only to offences arising under those Acts. 

Section 29 amends and updates section 2 of the Offences Against the State (Amendment) Act 1998. Section 2 is more specific than section 5 of the 1998 Act, in that it relates to inferences that may apply in cases relating to membership of an illegal organisation. It would therefore not be appropriate to repeal it but it is being amended to include, in particular, the safeguards now generally available under sections 18, 19 and 19A of the 1984 Act in the case of arrestable offences. These safeguards relate to the need for a clear caution, access to a solicitor and the need for an interview to be electronically recorded. The provision that the court may take note of the time or stage at which the person first gave an account is also included.

I am satisfied that the new situation improves considerably on the existing situation and that it's a balanced set of proposals that allows for reasonable and common - sense inferences to be drawn but that nevertheless also provides strong and enforceable safeguards.

Part 5, section 30, deals with the Misuse of Drugs Act 1977 and in particular, section 27 of the 1977 Act which deals with the question of mandatory minimum sentences. Deputies will note that section 30, subsection (2) of the Bill helpfully contains a Table which restates the consolidated version of section 27. I will refer to that Table in order to identify the amendments being made by this Bill. The first amendment is in subsection (3C). A new paragraph (a) is added. It is a 'construction' clause that sets out in the clearest terms the intentions of this House in relation to mandatory minimum sentences for drug trafficking offences. It will be perfectly clear that the mandatory minimum term of 10 years must apply in all but the most extreme and exceptional cases.

Moving on to subsection (3CCC), a new paragraph (a) is added. At present, this subsection provides that in the event of it being a second or subsequent drug trafficking offence, the mandatory minimum sentence of 10 years imprisonment must apply, without consideration of any exceptional or specific circumstances. It is now proposed that where the drugs are valued at 500,000 Euro or more, the mandatory minimum of at least 10 years is to apply, without reference to any other factors and regardless of whether it's a first, second or subsequent offence. I should add that the maximum sentence of life imprisonment remains unaffected by these changes.

I have no doubt but that the approach now proposed is correct. No one can possibly argue that a person having such a vast quantity of drugs in their possession is deserving of any leniency. Anyone in those circumstances is a major player in the drugs trade and, equally, a major threat to society. The new legislation is crystal clear on this point and as a result, I know it will not give rise to any difficulty or confusion in application.

I am satisfied that section 27 of the 1977 Act, as it is now set out, represents a clear statement of when the 10 year mandatory minimum is to apply. I believe, therefore, that, for the present, nothing more need be said on the matter.

Part 6 (sections 31 to 37) deals with firearms, and in particular with the circumstances where the mandatory minimum term of either 10 or 5 years imprisonment is to apply. Each section repeats the 'construction' clause I have already referred to in the case of drug trafficking. As I have already said, the new clause puts beyond doubt the intentions of this House in relation to this issue, that is, if anyone could ever have been in any doubt about the matter.

A number of minor and technical amendments are also included that address issues arising from the amendments made to the firearms legislation in the Criminal Justice Act 2006.

Part 7 (sections 38 to 40) deals with amendments to the Garda Siochana Act 2005. Section 38 inserts a new Chapter 3A into the 2005 Act providing for the establishment and functions of a Garda Síochána Executive Management Board.  The Board will consist of executive members (the Garda Commissioner as chairperson, the Deputy Garda Commissioners and a member of the civilian staff of the Garda Siochana, at a grade equivalent to that of a Deputy Garda Commissioner) and three non-executive members. The three non-executive members, who will have appropriate management experience, will be appointed by the Government on the nomination of the Minister.  The non-executive members will serve in an advisory capacity.

The function of the Board will be to keep under review the performance by the Garda Síochána of its functions, as well as the arrangements and strategies in place to support and enhance the performance of those functions.  In particular, the Board will keep under review the arrangements and strategies in place to support and improve the performance of the organisation and the corporate governance arrangements and structures within the Garda Síochána.

The Board will produce 6 monthly reports on the performance of its functions to the Minister and they will be laid before each House of the Oireachtas.

Section 39 of the Bill provides for the replacement of section 42 of the 2005 Act. Section 42 enables the Minister to order special inquiries to be carried out into Garda activities in certain circumstances. I have come to the conclusion that the provision should be strengthened and extended. Therefore, inquiries under the current section 42, which are limited to the administration, practice or procedure of the Garda Síochána, will be broadened to include 'operations' of the force and 'the conduct of its members'.  The person appointed by the Minister to undertake the inquiry may interview not just members of the Gardai, but also any other person who has information or has control over a document or thing of interest to the inquiry. That person will also be empowered to apply to the High Court for an order of compliance, backed up, if necessary, by the possibility of an order for contempt being made by the Court, where there is a failure to cooperate with the inquiry.

Section 40 provides for a number of amendments to the Garda Síochána Act 2005.  Some of these amendments arise from suggestions made by the Garda Síochána Ombudsman Commission. The remainder are mainly technical in nature and involve minor changes to clarify certain matters which have come to light since the passing of the 2005 Act. 


Part 8 (section 41) amends the Sea Fisheries Acts 2003–2006. These amendments are necessary in order to strengthen controls in relation to the detection and enforcement of illegal fishing activity. They are included in this Bill at the request of the Minister for Communications, Marine and Natural Resources and with the approval of the Government.

The amendment provided for in subsection (a) will allow a Sea-Fisheries Protection Officer to apply to a judge of the District Court for a search warrant to enter and search places where there are reasonable grounds for suspecting that there is evidence of an offence under the Sea-Fisheries Acts. I understand that the necessity for this amendment was highlighted by a recent case whereby Sea Fisheries Protection Officers were denied access to a premises. Their legal right to enter was subsequently vindicated by the High Court. This amendment will, within the normal safeguards, ensure that, in future, serious investigations will not be hampered or compromised by the unlawful obstruction of Sea-Fisheries Protection Officers carrying out their lawful duties.

Subsection (b) sets down a provision for penalties for offences committed somewhere other than on board a sea-fishing boat. That circumstance was not specifically provided for in the Sea Fisheries and Maritime Jurisdiction Act 2006. Penalties for offences under the 2006 Act committed on land as well as at sea will now apply in both circumstances. 

Subsection (c) is merely a technical amendment following from the amendment contained in subsection (b).

Part 9 (sections 42 to 51) covers several important issues. Section 42 amends certain provisions in the First and Third Schedules to Garda Síochána (Complaints) Act 1986 which relate to the terms of office of the members of the Garda Síochána Complaints Board and the Appeals Board respectively. It is necessary to provide that those members cease to hold office upon the repeal of the 1986 Act, when the relevant provisions of the 2005 Act are commenced.
 
Section 43 substitutes a new version of section 183 of the Criminal Justice Act 2006. That section deals with possession of articles intended for use in connection with kidnappings and false imprisonment.  The scope of the section is being expanded to cover several other offences, namely murder, capital murder and drug trafficking. An offence is committed where a person has possession of an article in circumstances that give rise to a reasonable inference that they have it for purposes of committing one of the offences listed. It is a defence for the person to show that they did not possess it for the commission of an offence.

Section 43 also provides for a new section 183A of the 2006 Act. Section 183A concerns the possession of cash (at least 5,000 Euro) in circumstances giving rise to the reasonable inference that it's for use in or in connection with the commission of an offence. As in section 183, it will be a defence if the person can show they did not have it for that reason. The offences listed in section 183A are murder and capital murder, drug trafficking offences, kidnapping and false imprisonment, blackmail, extortion and deman ding money with menaces and robbery. The penalty on conviction under either section 183 or 183A is up to 5 years imprisonment.

I want to say that these offences are being created because I feel they will be very useful in tackling those who assist and facilitate the major gang bosses. In other words, I want Deputies to understand that this Bill aims to tackle gangland crime at all levels. It is essential that we attack the support systems employed by the main players and these new offences will assist greatly in that respect. 

Section 44 updates section 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001 by adding robbery to the list set out in that section and to bring the defence of innocent possession under section 15 into line with sections 183 and 183A.

Section 45 amends section 6 of the Criminal Justice Act 1984. Section 6 deals with the taking of samples from arrested persons. The first amendment permits the taking of second or further samples where the first are damaged or are otherwise unsuitable. The second amendment involves a change in the rank of Garda who may authorise the taking of samples, from Superintendent to Inspector. However, I should point out that in the case of intimate body searches (involving, for example, the removal of underclothing) only a Superintendent may authorise those searches.

A new section 6A is being proposed. It will permit the use of reasonable force in the taking of samples (finger or palm prints or photographs) under section 6. The person must first be cautioned and the use of reasonable force must be authorised by a Superintendent and supervised by an Inspector. It must also be video recorded. Unfortunately a provision such as this is necessary but I think Deputies will agree this section contains strong and verifiable safeguards. 

Section 46 replaces section 8 of the Criminal Justice Act 1984. In its current form, that section deals with the destruction of samples and similar records, generally after 12 months where no prosecution is taken or, in the event of a prosecution which ends in a dismissal or acquittal, within 21 days of the acquittal or dismissal. In other words, only samples or records relating to convicted persons may be retained. I am satisfied that such a limited approach is no longer justified and the new section 8 is, therefore, based on the principle that all samples and records are to be retained indefinitely but that, in the interests of natural justice, some provision needs to be made for removal and destruction of samples in individual cases. The new section 8, therefore, provides a mechanism for the removal, etc of samples.

I believe the result of this change will be that the Gardaí will be able to develop a more comprehensive databank of information which can be searched for intelligence purposes. This is essential for modern police work. Similar proposals are contained in the legislation being drafted on the establishment of a DNA databank.

Section 47 introduces new detention arrangements for persons arrested in connection with murder where firearms or explosives were used, capital murder, false imprisonment where firearms were used or possessing a firearm with intent to endanger life. The offences are ones linked to gangland activity and the extended detention time is necessary in order to locate and interview witnesses and suspects as well as providing adequate time for the forensic examination of crime scenes.

In the cases coming under this new section, persons may be detained for up to seven days. This is already the case under the Criminal Justice (Drug Trafficking) Act 1996. Detention under that Act is under judicial authorisation and supervision after the first 48 hours and it will be the same under this new provision.
 
I have decided to limit the new power to the serious cases I have mentioned because I could not justify the use of such an arrangement for, let's say, a 'domestic' murder. I believe we must tread carefully when authorising extensions to detention periods.

Section 48 provides for the re-arrest of persons detained under section 47, in the same way as section 10 of the Criminal Justice Act 1984 provides for re-arrests and section 4 of the 1996 Act does likewise.

Section 49 ensures that certain sections of the Criminal Justice Act 1984 apply to persons arrested and detained under the new powers. The relevant sections provide, for example, for access to a doctor, if required, access to a solicitor and also provide that a person must be released once the detention is no longer required or justified.

Sections 50 and 51 make technical amendments to the 1984 and 1996 Acts.

I conclude, a Cheann Comhairle, by commending this Bill to the House. It is a major piece of legislation, justified by and aimed at addressing the scourge of gangland crime. It is, as we have seen, a very diverse Bill, covering many aspects of the criminal law. However, each Part (other than Part 8, of course) has its own part to play in the fight against organised crime. There is, therefore, a unity in the Bill around the aim of defeating organised crime.

I look forward to a lively debate and I hope as many Deputies as possible will have an opportunity to contribute.

 

22 March 2007