Dáil Éireann - Volume 347 - 18 January, 1984
Death of Mr. Seán MacEntee. - Criminal Justice Bill, 1983: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
Mr. B. Ahern Mr. B. Ahern
Mr. B. Ahern: As I way saying, it is obvious that anyone closely associated with life in this city, as well as those acquainted with life in rural areas, will be aware of the way the present law is being totally manipulated by a few smart solicitors to get people off serious offences. People have been able to get away with the unauthorised taking of cars continually over the last five years in this city. It reached very high proportions and several thousands of cars were stolen. It has reached a ridiculous stage. The criminal now even helps the people whom he stole the cars from. He burns out the cars in my area so that the owners can get the insurance, thereby putting up general insurance premiums. The car parts are sold to back street garages, people who participate in the black economy. This Bill will at least give the Garda an opportunity to tackle offences of that kind. Up to the present the Garda have been made idiots of and anybody who tries to justify this does not understand the position.
I should like to say that when this Bill reaches its Fifth Stage — I cannot speak for the Fianna Fáil Party on this but I assume that when we discuss it at a party meeting this will be agreed — coincidental with it we will be discussing the Fifth Stage of legislation dealing with complaints procedure. It would be wrong to  proceed otherwise. In the original document issued with the Bill it was implied that there might not be legislation in regard to complaints procedure. If so, I should be glad to hear from the Minister tomorrow, when he concludes this debate, what he proposes in this regard.
I would remind the House that we were told it had not been decided whether legislation would be necessary to establish complaints procedure or whether it would be introduced in the first instance as an administrative matter. However, we were promised that both Houses would be given an opportunity to discuss complaints procedure before it was brought into effect. I suggest that there must be legislation and that both Bills be decided together. We could not expect the House to agree to pass a Bill to amend the criminal law while the Minister could by regulation or by administrative act introduce complaints procedure. That would be impossible and I have been told so by solicitors I have spoken to.
I will put forward a few viewpoints on sections I regard as extremely dangerous. During an Adjournment Debate I gave statistics in regard to crime, vandalism and lawlessness in this city. On a number of occasions I have highlighted that. The Bill will help to solve many problems, but we must ensure that we will get a right balance so that we will not antagonise the community against the Garda by giving the latter tough powers. The Garda do an extremely good job in so far as they can. For years they have been crying out for legislation such as this. This Bill gives them almost all the powers they require but they should implement the Bill without using unnecessary force, when force is necessary. I disagree with some Deputies who think that the Garda can solve all problems without the use of force. That seems funny to me. I will leave it at that.
Deputies have spoken about the effects of section 3. I share the concern of the Garda and the framers of the Bill in regard to the questioning of those who commit serious crimes. The Garda have been complaining that their investigations are being hampered in some way.  In many city centre areas there is extra pressure by the Garda and this alienates communities in those areas. The level of trust in the Garda is correspondingly low — it is just a “we and they” situation. Section 3 covers petty crime. Some people may think there is no such thing as petty crime. In deprived city centre areas it often becomes necessary for children to steal from shops. I do not consider that as a very serious crime, though I accept it is crime. They often do it for survival, through hunger or because they do not have money or because their parents do not look after them properly.
Section 3 covers a vast array of offences, including misdemeanours, shoplifting, petty larceny. If the Garda use heavy arm tactics against that kind of crime they will find it very difficult to get public support when they are dealing with more serious crimes. That has been proved in relation to the Offences Against The State Act because only one out of every ten people detained has been convicted afterwards. In those cases people were arrested on suspicion but in 90 per cent of the cases the authorities were wrong. Powers of detention in these circumstances were only given previously in the Offences Against The State Act and they should not be given for inner city type minor thefts. That is going a bit too far and the balance will have to be looked at. If that is not done, though the Garda try hard, there will be further alienation. They try hard to do their job but they do not have the support of the people. I am speaking with wide experience of those areas and with the support of the clergy, social workers and community people who work in those areas. I know the Minister has submissions on that. It would be unfortunate if the House ignored the expertise of the people who know those areas.
You cannot generalise on a Bill such as this. Protection has to be built into Bills. Many people do not realise how much suppressed anger and resentment exist in some of those deprived areas. It is another question whether it is justified.
A section like section 3 could possibly break the camel's back, and this section has to be looked at very carefully. At a  time when resentment and frustration are increased by a massive increase in unemployment this type of position can lead to an explosion. There were a number of independent assessments following the Brixton and Toxteth riots in 1981. The major reason for those riots was the alienation of the young people in those areas from the police force. This can happen again without the police positively trying to aggravate the matter.
The Garda have so many problems in those areas and they are called out so frequently that there is a tendency to beat it out of them rather than bring them in and question them like they do in an upper class area. I suppose if I was a garda in some of those areas I would be inclined to do the same. A garda in those areas can hit a fellow a few wallops for a minor crime and it is taken far better by young people than being brought in and interrogated as can be done under section 3 for the same offence. Having spoken to many of those young people and their parents, I know they would accept a wallop far easier than they would accept being dragged down to Fitzgibbon Street, Mountjoy, Pearse Street or Store Street stations and interrogated.
I believe the section should be amended. One amendment which could be looked at is that the detaining garda should at least have reasonable grounds for suspecting that the person detained has committed the offence. The reasonable grounds and the crime suspected must be stated to the person being detained as well as to the station sergeant and not just to the gardaí. The suspect must have the right to appeal this to an independent tribunal, which I am sure would be allowed under separate legislation but is not under this Bill. The station sergeant would be held responsible in court for ensuring that the suspicions of the detaining garda are reasonably grounded and not just that he so thinks. He must explain himself. I support also the tape recording of interviews.
Sections 15 to 18 are the other sections there has been a lot of discussion about. I understand the position of the gardaí and the position of the drug squad who  pick somebody up, find a substantial sum of money on that person and cannot force that person to reveal where that money was obtained. Legal experts have pointed out that the sections are extremely vague and undefined. I am not a legal expert, but if they are vague and undefined they have to be very well teased out. This party have at present under examination the type of amendments we will put forward to sections 15 to 18, which are basically about the right to silence. Any person can be stopped, searched and required to account for anything in his possession. The Garda in some areas have a hunch that a certain person may be involved in crime or helping to organise crime, but they may be wrong, so we have to be very careful on harassment. I believe the Garda have sufficient powers to do most of the other things they want without harassment.
I am concerned mostly with my constituency where a lot of the people have not reached a sufficient level of education, tend to be backward and are ignorant of rights and wrongs. At the same time there are others who are very well briefed. A frightened, confused person who may have some psychological problems could be convicted on very weak circumstantial evidence because his confusion or disorientation may result in making statements or failure to make statements which are construed as corroborating some kind of evidence. That is easy to understand in an area like Sherriff Street where there is a high level of crime. If young people from that area are dragged in and questioned some of them would almost agree with anything. Others would not agree even if they were in the High Court. People have a right to be protected. I am afraid sections 15 to 18 will be taking away a lot of rights which I believe people are entitled to have.
I believe that weak, vulnerable people could easily be dealt with unjustly by the law. When you go into court and you have sharp solicitors and station sergeants there it is very difficult if a person is not properly defended. Such a person can easily be convicted of crime while others can get off because they have a  good solicitor. It is the job of the legal system to prove people guilty, given reasonable legislation to do that. I believe if sections 15 to 18 are very severely amended they will not take anything away from the Bill. Perhaps it might be important to leave the sections in for more serious crime because we are then up against the people who are very well briefed. We are up against the criminal element who have legal advice before they go into crime. We are talking about the major gangs and the major criminal activity in this city. It would be terrible, having waited so long for a Criminal Justice Bill, if we ruined it by not creating the distinction between petty crime and minor larcenies and serious crimes like drug trafficking and major criminal gangs. I believe a few amendments could clearly show the distinctions here. I do not believe it would be very hard for any efficient draftsman with a good legal mind to come up with good amendments to sections 15 to 18 in order to do that.
It has been said by some people who defend sections 15 to 18 that all it means is that in court the judge and jury are notified that a certain person left out something important in the initial stages of making a statement. However, if it is a person's first time in a Garda station or if a person did nothing and was just hauled down to a station and faced with a few bulky looking customers asking him to make a statement, it can be very intimidating. They do not give tea in Garda stations, as anyone who ever tried to bail somebody out or help somebody knows well. If one is used to being in a Garda station one can handle the situation. There have been some cases — I will not name them as they will be known to the Minister and his Department — where it has been alleged that prewritten confessions were found in Garda stations. Whether that can be substantiated or not is another matter, but even the thought that that could happen is enough to make people concerned. If a person is nervous he may leave something out or he may accept something if he thinks it will make it easier for him. That may be used against him afterwards. Some people say it will not be used against him, but perhaps  it would. If I was walking down the street, bundled into a black maria and ten minutes later was answering to a burly sergeant I would forget a lot of things. I would even forget I was here today. I do not go along with the fact that that can be used in court against a person. I realise that this has to be thrashed out further. The criminal will still have his alibi because he will have thought out what he will say before he is brought in.
I have said time and again that we must give a fairly tough Bill to the Garda to enable them to deal with the problem of law and order. They must be allowed to use a certain amount of force and flexibility. At the same time we must protect the rights of the individual. They are fundamental and human rights which could be taken away if this Bill went through unamended. This party supports the Second Stage but the Minister can rest assured that it will be an active and lively Committee Stage. What eventually goes through the House is extremely important. I congratulate the Minister for eventually bringing the Bill into the House. I plead with him to think of all sections of the community before it is passed.
In spite of what was said by the last speaker community policing will be a major step forward in solving the problems in deprived areas where crime and vandalism are rampant. The Garda are not popular in many areas. Perhaps it is not their fault but it is in many areas where they were highly respected in times gone by. If there is blame on one side there is also blame on the other. There are many people willing to co-operate with the Garda and to build up the kind of relationship that once existed. The Garda would know what was happening and get a better feedback, particularly in city areas. The Garda have said that it may be easy enough in rural or suburban areas to have community policing but it would not be so in city areas. If the Garda co-operate with community policing they will stop many of the tactics going on at present. I will not refer to them but in my area and in others it is well known that the drug problem and drug pushers are on the decline not through any actions of  the Garda. That is regrettable. I predicted that a long time ago and was scourged for it, but if we do not have community policing and co-operation with the Garda they can be given ten Criminal Justice Bills and things will deteriorate. If the Minister or the Commissioner think otherwise, they should think again.
Mr. R. Burke Mr. R. Burke
Mr. R. Burke: In evaluating any legislation such as this Bill, which is designed to alter the rules and regulations of our criminal law, there are three important concepts which have to be considered. The first and perhaps most fundamental and important of these is that society must be protected. Any society that feels threatened by an element of lawlessness must and will react to ensure that law abiding citizens can go about their business and pleasure without fear. When society feels that there is a threat to the safety of the individual or to property society will demand that steps be taken to curb the criminal activity of those who would endanger law abiding citizens or property.
We heard the Minister when opening the debate outline the general background which led to the introduction of the provisions now before the House. We heard of the rising incidence of crime, the amount of unsolved crime, the intolerable financial cost to the State as a result of crime and the cost to the Department of Defence in the provision of security and help to the Garda authorities, the loss of revenue from tourism and the increased need for concentration on deterrents and detection of crime.
It is abundantly clear to any right-minded citizen that the harsh reality in modern Ireland is that our laws are inadequate and further measures such as those contained in this Bill are urgently required to provide our citizens with the kind of protection they are entitled to and demand. It is for us, the legislators, not just to react to the demands of society but to anticipate them and provide the laws necessary. We must allay the fears of citizens and demonstrate to those of criminal intent that their activities will  not be tolerated by society. If we are to fail in these basic functions as legislators it would be true to say we would have failed the society that elected us to perform this role.
The second concept I would refer to is to ensure that our laws result in the apprehension and conviction of criminals. We all know that in many cases the Garda might be well aware of the perpetrators of a given crime. However this knowledge does not satisfy the general principle I have mentioned. What is required is a code of law which will ensure that the criminal is apprehended, brought to trial and in due course convicted. I am mindful of the fact that in achieving this we cannot jeopardise the rights of the innocent. Whatever the detractors of this Bill will say, one thing remains abundantly clear: in the ultimate analysis all those brought before our courts will be tried in accordance with the rules of law and evidence. The judges are there to ensure that these rules are applied and to make sure those before the courts secure a fair trial. To those detractors of this Bill I say that the fundamental precept of our criminal law remains unchanged, that is, a man is innocent until such time as he is proven guilty. What we have in the Bill are provisions designed to ensure that the detection of crime is facilitated.
The third concept is that those to whom the enforcement of law is entrusted, namely, the Garda Síochána, must have the necessary powers to assist them in their task. Only by giving them such powers can the first two concepts be implemented. It is totally insufficient for people to say that society must be protected and that criminals must be apprehended. It is essential that powers be given to those people to whom the enforcement of our laws is entrusted. Sections 3 to 8 do not undermine the fundamental concept that a person is presumed innocent until he is proved guilty. Section 3 deals with the detention of an arrested person and it applies only to offences where the term of imprisonment and conviction is five years. I suggest that the Bill should be amended to add the words “or more” after the words “five years” in subsection (1). The powers of  detention contained in the Bill can apply only where the person has been arrested with reasonable cause. The section then deals with details of the powers of detention. All of these matters will be viewed subsequently at the trial by the presiding judge. These provisions do not give the Garda unlimited powers of detention and in addition, in the Bill there are sufficient clauses to ensure that the chances of the powers being abused are totally minimised.
There are further safeguards in section 4 which outlines the rights of an arrested person to consult with a solicitor. It is the duty of the member in charge of the Garda station to notify a named person of the place of detention of the accused and in the case of somebody under 17 years it is the duty of the Garda Síochána to notify the parent or guardian of the arrested person.
I am satisfied that sections 5 and 6 are necessary to aid the Garda Síochána in carrying out their functions. Further, I am satisfied that safeguards contained in section 6 are adequate to protect the interests of law-abiding citizens. Where a prosecution is not brought or where the accused person is acquitted, any of the records referred to in section 5 are to be destroyed and this can be witnessed by the person concerned or his solicitor.
In section 8 there is adequate provision against an ad hoc re-arresting of an accused person. Section 9 deals with a matter which has been the subject of comment on many occasions by the Judiciary. It is a matter that causes very much concern, namely, the high incidence of offences committed by people while out on bail on other offences. It is a pointless exercise and an abuse of the indulgence of society if people who are out on bail use that time to commit crimes with impunity knowing that their sentence will be taken into account. I welcome the provisions that have been made with regard to this matter. What has been happening here is an intolerable abuse that must be eliminated. The provisions in sections 9 to 15 are desirable and overdue. The legislators must take steps to ensure that people do not take advantage of technical matters to commit crimes or  withhold information from the proper authorities in connection with crimes.
There are two other provisions which I welcome. The first is contained in section 19. This section provides that in the case of indictable offences the accused must produce notice giving particulars of an alibi which he wishes to adduce. This is a fair and reasonable provision. To date the accused in a criminal trial is forearmed with a book of evidence containing statements of witnesses to be brought against him. I am glad this will not be interfered with as I think it is in accordance with fairness and justice. However, the situation prevailing to date in relation to alibis is patently unfair. There can be a situation where at the close of the State's case the accused can suddenly and without prior notice produce an alibi. Why should the State not have the right in advance to investigate the alibi? This would be a fair and natural development.
There should be a radical overhaul of the licensing and registration of vehicles. Every serious crime involves transport. If we had a proper system of identifying the owners of vehicles the use of such vehicles in crime would lead quickly to finding the culprits. Such a system was put forward in the 1982 Garda Review by Inspector Ryan of Cork and the Minister should pursue this point.
There are also many vagrant itinerants and persons from across the Border driving uninsured cars here and nothing can be done about them. If a garda stops one of the cars the person concerned has ten days in which to produce his licence and insurance but the vagrant has disappeared long before then. Some changes are needed here. I welcome the provisions in section 24 which provides for majority verdicts in certains cases and under certain conditions.
I welcome the Bill. I am satisfied that there are inherent safeguards in it. Given the basic precepts of criminal law and having regard to the provisions in our Constitution, this Bill will provide a reasonable hope of a safer existence for law-abiding citizens.
Miss. M. Barry Miss. M. Barry
Miss. M. Barry: I should like to welcome  the provisions in the Bill. We are all very concerned at the high level of crime and this is a step forward in dealing with the matter. The number of Deputies who have spoken on the Bill is an indication of the level of interest and the concern that exists with regard to the high level of crime. In my view it has been one of the most-talked about Bills since I became a Member of this House.
As we introduce various measures to deal with crime I have often asked myself if we are only scratching the surface. I wonder if we are prepared to look at the root problem. Until we do this we will only find patchwork solutions to the problem of crime in our society. There is need for research into the cause of crime and, unless there is such research, any solution designed to combat crime will be a half-baked solution. Money spent on research would be money well spent to discover the root cause of crime. Properly carried out surveys would give us clear indications of the causes of crime and, having carried out adequate research and properly designed surveys, we would be properly equipped to deal with crime.
Many speakers have dealt with the contents of the Bill. Before I do so I should like to go into the reasons which are the causation of crime. I believe bad law causes crime. There are many laws which in effect lead both young and old into criminal situations. There are many laws which could be introduced that would prevent or prohibit crime. That is our responsibility and we should repeal much of our existing legislation and introduce legislation to suit our particular social structure. We have a habit of copying British law. I think that is deplorable. An example of that is the Unfair Dismissals Act. There is a great deal to be learned from other countries and from Britain. We could well garner ideas and opinions from these. Unfortunately we do not look at British law to see how it was enacted and learn from their experience. Up-to-date research would improve our laws and would save amending our laws at later stages.
Law should be adapted to the Irish situation. There are loopholes in the law  which seem to favour the rich. This is very demoralising, particularly for our young people. An example of such loop holes is the case of Pat O'Connor in the February election of 1982. Many young people around the country were summoned for double voting and they were convicted. Pat O'Connor had the financial resources to take a case to the High Court and, while he was summoned for double voting and it was acknowledged he had two ballot papers, there was no evidence to bear that out. If young people see this kind of inconsistency one cannot blame them for growing cynical and bitter. The lack of consistency in our courts has been very disheartening and saddening. I can see no consistency at all in reported cases. It is of vital importance that we have a system of law and order which is just, and when I say “just” I mean laws designed for the greatest good of the greatest number. It must be consistent because if the punishment does not fit the crime one cannot expect consistency and good standards in society generally. It is imperative that penalties should reflect the seriousness of the crime. That is not the case at the moment. We all know of instances where a relatively minor crime met with a huge penalty while what we would regard as a major crime met with a minor penalty. We all have knowledge of these incidents.
One British law which would be useful is the law relating to the rehabilitation of offenders which was passed in 1974. If one commits a crime one is given a rehabilitation period and once that period is successfully negotiated one gets a clean sheet. If one is sentenced to six months or more imprisonment one is given a rehabilitation period of ten years. If one does not commit an offence during that period one is no longer labelled with the original offence. Now I know of a case in the Ceann Comhairle's part of the country where 20 years ago a young lad was accused of stealing a chicken. He was summoned to court but was found not guilty. A few months ago he went about setting up an auctioneering business but the superintendent had to give his court record. The result may be a delay in the  whole process. It is wrong that people should carry with them a minor offence committed 20 or 30 years previously. The worst aspect in this case is the fact that the young man did not commit the crime. If the rehabilitation to which I referred were introduced here that would give hope to young people. That would be a welcome introduction into our laws. It is a good concept and it should help in the fight against crime.
The law also needs to be updated where car theft is concerned. An ever-increasing number of cars are being stolen, particularly in the Dublin area. There were only 40 people accused of theft last year for actually stealing cars. I understand that when one steals a car one has to change the number plate before one can be convicted of stealing. Under some other measure you can be taken to court but the penalties are very small and very varied. I come back to the point that the penalty should match the crime. If the present situation continues people will begin to lack confidence in the system and we shall find ourselves in very dire straits indeed.
The legal profession should come together and put their own house in order. Surely it should be possible for them to come to agreement in the application of similar sentences for similar crimes. In all other professions there is consistency in decision. Doctors, nurses, politicians, auctioneers and so on can meet together and adopt a consistent policy. If sentencing in our courts appears inconsistent, as it often is, then we are fighting a losing battle. It is the last straw in a democratic State.
I believe the general lowering of standards in society is another cause contributing to increased crime. Formerly, when a crime was committed people co-operated with the Garda in their detection efforts. Now life has become so materialistic, selfish and personal that each one merely looks after himself. The community has become less homogeneous and standards generally are declining. In the fight against crime I am certain we need general improvement in standards in society. Once I asked a detective involved in the Cork drug squad to  account for the increase in crime. He said that one of the most obvious reasons to him was the lowering of standards in high places. When young people see people in high places carrying on in such a way they say: “Why not I?” That situation must be changed if we are to cope with rising crime. The community spirit which was a great protection against crime has disintegrated because we have moved to a much more urban society. Dublin has expanded rapidly and many country people coming to live in Dublin do not know their next-door neighbours or anybody near them and this seems to lead to indifference and an increase in the crime rate.
Unemployment has grave consequences for society and it is time to tackle the problem head on. It will not go away. It is useless for politicians to declare that their aim is full employment in the future. It is unrealistic. Because of world trends less and less work will become available. Due to new technology and mechanisation, computers, micro chips and so on, fewer jobs will be available. We shall have to share the work of the nation among the people of the nation. We have been accustomed to the work ethic and regard it as part of our tradition and our life. Our self-esteem is closely linked with our jobs. People lose their self-esteem if they lose their jobs. In despair, they look for some sort of kick out of life and that often involves some form of crime. The devil finds work for idle hands. If we fail to deal with unemployment we can only expect an increase in crime. Many people feel bitter and think the State owes then a job. To work is a basic human right and naturally people without work become resentful of those with property and big cars and so on, things which are unattainable to themselves. Much crime in poorer areas is against property, not people, according to research information — people taking out their frustration and aggression on property which they know they can never own themselves. They regard people with property rather as an enemy.
The challenge of poverty is always there, in recession or out of it, and we should always endeavour to come to grips  with unequal distribution of wealth in our society. That inequality produces problems on other levels. Another reason adduced for the increased crime rate, and one to which we pay little attention in Ireland is the portrayal of violence in the media particularly on television and videos. In many cases, even in this country, children witnessing violence on television attempt to emulate it. I have known instances of it myself. A recent case occurred on the day of the Hanging Bill in the British House of Commons. There was also a programme on television and a young lad of nine or ten, having heard in detail a programme on television that morning dealing with the proper way to hang and having seen a film of it, later did away with himself really in a sense of play.
Many programmes here do not do justice to the Garda Síochána. They often present the criminal as the hero. We cannot be ambiguous about our attitude to crime; one cannot be a hero and a criminal at the same time. Such double standards cause a general lowering of standards. We should present a more positive theme in a positive light such as the good work being done by the Garda. A weekly programme listing a lot of information is not sufficient. Young people particularly get a kick out of seeing something done that they have not seen done before. In 1978 when there was a television strike in Britain, one day at the height of the campaign one of the trade union members was flashed on television for a couple of seconds and this strike gathered momentum and great public support as a result. Our underlying attitude as presented in the media is very important and we should monitor and guard it.
Dáil Éireann 347 Death of Mr. Seán MacEntee. Criminal Justice Bill, 1983: Second Stage (Resumed).