Seanad Éireann - Volume 148 - 23 October, 1996

An Bille um An Séú Leasú Déag ar an mBunreacht, 1996: An Dara Céim. Sixteenth Amendment of the Constitution Bill, 1996: Second Stage.

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

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

Minister for Justice (Mrs. Owen): The Bill proposes to amend the Constitution through inserting a new Article 40.4.7., which will state:

Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.

Since I became Minister for Justice I have made clear my belief that changes need to be made to our bail regime to tilt the balance in favour of the victims of crime and the protection of the community [2165] generally. If the amendment is passed by the people, as I believe it will be, it will do just that.

No Government lightly brings forward a proposal to amend the Constitution but it is the strongly held view of this Government that, in the public interest, changes need to be made to our bail laws and that the effective way of making those changes requires an amendment to the Constitution. While conventional wisdom suggests that the amendment which we are now proposing has the support of a large majority of the people, I would nevertheless appeal to people to follow the public debate which will continue over the next few weeks as to whether this fundamental change should be made to their Constitution.

The amendment which is being proposed is relatively straightforward. There are no great complexities of law involved nor sophisticated technicalities at issue. What people are being asked is whether they agree with the idea that it should be possible to introduce laws which would allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person.

As the House will be aware the amendment arises against the background of the Supreme Court decision in the O'Callaghan case in 1965. Following that decision bail can be refused by our courts on two grounds only, the likelihood that an accused will not turn up for trial or will interfere with witnesses or evidence. This means that it is not open to our courts at present, when considering a bail application, to take into account the question of a person committing serious offences if released on bail even where, for example, the accused has a long track record of being involved in serious crime while on bail on previous occasions. If people believe that is wrong, then the only way to change it is by amending the Constitution along the lines proposed.

Since the amendment was published groups which are opposed to it have put [2166] forward a number of criticisms and I believe it is important that I should address these issues head on in the course of my contribution. First, it is argued that changes can be made to our existing law which would deal with the problem of offending on bail without the need for an amendment of the Constitution. The Government accepts that some worthwhile reforms of our bail laws can be made without an amendment to the Constitution and I am preparing legislation to this end.

The main purpose of the legislation is to make changes in three areas. At present bail is often granted on the promise by someone to pay money if the accused fails to turn up for trial -at that stage no money changes hands. The new legislation will provide that, generally, some cash or equivalent of cash must be put up as part of bail. The proposed legislation will also allow a condition to be attached to bail that an accused is of good behaviour and bail money can be forfeited if an offence is committed while on bail.

Further, the legislation will strengthen the provisions of the Criminal Justice Act, 1984, relating to the imposition of consecutive sentences for offences committed on bail to ensure that, as far as possible, an offender is always worse off in terms of penalty where an offence is committed on bail. However, while these changes are worthwhile they cannot ensure that offences will not be committed on bail. They do not, and cannot, address the central issue: should a court be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail?

Another suggestion has been made that providing for speedier trials would do away with the need for the bail referendum. A wide range of measures have been taken to ensure speedier trials. These include the appointment of additional judges, extended sittings in the courts, and, perhaps most fundamentally, the establishment of the Working Group on the Courts Commission which is involved in a radical [2167] overhaul of the operation of the courts. I should mention also that last week I announced the establishment of an advisory group on criminal law and procedure which will also have a useful role to play in this regard.

However, the reality is that despite all the improvements which are being brought about there will always be some lapse of time between a person being charged with an offence and the trial taking place — not least so as to give the accused an opportunity to prepare a defence. Again, the provision of speedier trials does not, and cannot, address the central issue: should a court be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail. It is worth putting on record the fact that traditionally the courts give priority to hearing cases where the accused has been remanded in custody. Recently I spoke with the President of the District Court about this issue. He again assured me that the courts are giving priority to cases where the accused has been remanded in custody.

Opponents of the amendment have also suggested that our prisons will not be able to cope with the extra numbers of prisoners who will have to be accommodated on remand. This seems to me to overlook entirely that the changes we propose in our bail laws are being brought forward against a background of a major programme of prison building which will involve the provision of about 800 extra places, an unprecedented increase of about one-third on our existing accommodation.

It would be fair to describe the criticisms I have mentioned as being to some extent tactical in nature rather than going to the heart of the issue. Opponents of the amendment believe that, as a matter of principle, it is wrong to deprive someone of their liberty without that person having been convicted. It legitimate to argue in favour of that principle but the question which arises is whether, given the modern realities of crime, we can afford to make that principle [2168] absolute or should it be modified in the interest of providing an appropriate balance in our law?

Treating the principle as an absolute means that there would be no circumstances in which a person is deprived of his or her liberty on remand, no matter how strong the evidence that an offence will be committed by that person if granted bail. In fact, under the law as it stands at present the courts are allowed to detain a person in custody pending trial on the basis of taking a view of the accused's likely behaviour if released. This arises where a court has to take a view as to whether the current grounds for refusing bail apply — the likelihood that an accused will fail to turn up for trial or interfere with witnesses or evidence. So the concept of taking a view as to someone's future behaviour in deciding whether bail should be granted is not, despite what some opponents say, entirely new. What is at issue in the amendment is whether the question of offending if granted bail should also be a matter which can be taken into account by the court. There are two current reasons that can be considered for refusing bail. The amendment, if passed, will add a further ground for consideration.

It is argued that the proposed amendment flies in the face of the presumption of innocence but it is worth making the point that the fact that bail has been refused has no relevance to the trial of an offence where the full presumption of innocence continues to apply. The reality is that our bail laws are regarded as very liberal compared to those which apply in other jurisdictions. In its report on the law on bail, the Law Reform Commission examined the position in many other jurisdictions and found that all allowed the question of offending on bail to be taken into account by the courts in deciding whether to refuse bail. It is not a sustainable proposition to argue that our crime problems are so uniquely different to those in other jurisdictions that we need not arm ourselves with provisions in our law to [2169] prevent offending while on bail which are readily available in other countries.

Obviously a balance has to be struck in relation to our bail laws between the rights of the accused and the rights of the community. The present proposals represent a measured way of retilting the present balance in favour of the victims and potential victims of crime and the community generally while building in necessary safeguards. What is at issue in passing this legislation is to allow the people to express a view in the light of their knowledge of the modern realities of crime, and, unfortunately in too many cases their experience of those realities, and to decide whether we, as a society, can afford to have the liberal bail laws which we have at present. What is simply at issue is giving the people an opportunity of having their say as to how one particular aspect of our crime problem should be tackled.

Much consideration went into the task of devising a suitable amendment to the Constitution. On the one hand we did not want to bring about a situation where people would be refused bail for relatively trivial offences. On the other hand we wanted to produce a wording that would make a genuine difference in practice in relation to the bail regime where serious offences were at issue. We finally settled on a proposed wording which we believe strikes this balance and has two practical advantages. First, it is relatively straightforward and will be easily understood. Second, and in the longer term, it has the advantage that it is based on the relevant part of the European Convention on Human Rights. Article 5(1) of the convention allows for the deprivation of liberty “... . when it is reasonably considered necessary to prevent a person committing an offence”.

The House will be aware that the Government has made available an outline of the main provisions of bail legislation which it would propose to introduce should the Constitution be amended. The Government believes that these proposals should help inform public debate on the proposed amendment [2170] of the Constitution. The outline legislation sets out the serious offences to which the new bail regime would apply and the criteria to which the courts would have regard in considering whether the refusal of bail to a person charged with a serious offence is reasonably considered necessary to prevent the commission of a serious offence by that person.

A dual approach is taken to specifying the offences to which the new bail regime can apply. First, a “serious offence” is defined as an offence carrying a maximum penalty of five years imprisonment or more. Second, a Schedule is included setting out the wide range of offences covered by the legislation. This approach means that, while all offences to which the legislation will apply must carry a maximum penalty of five years or more, not all such offences will be covered by the legislation — primarily on the grounds that some of the offences in our current law carrying such a penalty are archaic or unlikely to be ones where the questtion of reoffending is relevant. It is not, therefore, automatically an offence that carries a maximum penalty of five years that would be included in this; they would also have to be included in the Schedule.

Refusal of bail will not apply automatically in respect of any specific offence or category of offence. I want this to be clear to those, especially those outside the House, who are concerned that everybody is going to be refused bail as a result of this amendment to the Constitution being passed. It is not going to be refused automatically.

Refusal of bail in relation to any specific offence is a matter for the courts to decide in the light of the criteria set out in the legislation. The outline legislation sets out seven matters to be taken into account by the courts, where appropriate, in deciding whether it is reasonably considered necessary to refuse bail to prevent the commission of a serious offence. These include first, the nature and degree of seriousness of the offence in respect of which the accused person [2171] is charged and the potential penalty; second, the nature and degree of seriousness of the offence apprehended and the potential penalty; third, the conviction of the accused person in respect of an offence committed while on bail on a previous occasion; fourth, any previous conviction of the accused person including a conviction under appeal; fifth, any other offence in respect of which the accused person is charged and is awaiting trial; sixth, the nature and strength of the evidence in support of the charge and, seventh, whether the accused has a substance addiction.

It is important to note that the outline legislation provides that in determining whether refusal of bail is reasonably considered necessary to prevent the commission of a serious offence it shall not be necessary that the commission of a specific offence is apprehended. To have to prove that a specific offence would be at issue if bail were to be granted would be likely in practice to impose a standard of proof which could rarely, if ever, be met. The specific provision which I have mentioned will ensure that the new bail regime will be workable and effective.

Since the outline legislation was made available some public comment has focused on the reference it contains to an accused having a substance addiction. It has been suggested that the fact that someone has a substance addiction would in itself represent a ground for the refusal of bail. I am glad to have this opportunity to make it clear that those concerns are misplaced and are not based on a full reading of the proposals in the outline legislation.

Under the proposed constitutional amendment one test applies to bail being refused and that is if the refusal is reasonably considered necessary to prevent the commission of a serious offence. That test is repeated in the outline legislation which also sets out the criteria to which the courts should have regard in applying the test. One of the criteria relates to an accused having a substance addiction. However, the question [2172] is only relevant in the context of deciding whether refusal of bail is necessary to prevent the commission of a serious offence and it must be considered against the background of the other criteria which relate mainly to an accused's criminal record. There is no question, therefore, of a person with a substance addiction, who does not represent a threat to the community, being refused bail on the grounds of substance addiction alone. I am glad to have this opportunity to explain this point fully because people may have misunderstood it.

The outline legislation provides for a review of bail applications if the trial has not commenced within four months of the initial refusal of a bail application. While the granting of bail would not be automatic in such circumstances, the court is to have regard to any undue delay on the part of the prosecution in bringing the case to trial and to order the release on bail of the accused if satisfied that the interests of justice require it. This point has not been fully understood by people who oppose the Bill and who say that people may spend 18 months or two years in jail. In other jurisdictions with similar regimes, people spend such lengths of time in prison. However, the Government has included a safeguard that, if hearings have not commenced after four months, cases will be reviewed.

The issue of bail has been discussed in the House on numerous occasions in recent years. Some Members have expressed frustration at what they regard as delays in dealing with changes in our bail laws. However, all Governments over the past 30 years have grappled with this issue, but this is the first one which has succeeded in grasping the nettle and bringing forward comprehensive, considered and practical proposals which should deal with the issue once and for all. Oppositions brought forward proposals but they did not implement them while they were in Government.

I am sure it will be possible for all sides to put aside political differences [2173] and not detract from the message which most Members wish to go from the House that this is a necessary change to the Constitution which will help in the fight against crime. If some Senators are reluctant to support the proposed amendment, I remind them that the only issue which arises in passing this Bill is allowing the people to have their say on whether the proposed amendment should be enshrined in the Constitution.

The Government is anxious that the public debate on this issue should be as fully informed as possible. In this context I am sure Members of the House welcome the decision to establish an ad hoc commission for the purpose of supervising the production and publication of an information statement setting out concisely the case for and against the proposed constitutional amendment. The Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad will be the distinguished members of the commission.

Amending our bail laws is not a panacea for dealing with all our crime problems. However, the referendum provides a practical opportunity for people who are understandably concerned about crime to use their democratic franchise to make a difference for the better to the quality of life in our society. I commend the Bill, ultimately to the people, but, for now, to the House.

Mr. Mulcahy: The Minister is aware of the Fianna Fáil Party's position on the proposed amendment. We support the Bill because it has been a long standing contention of the party that the bail laws need reform. These laws have been frozen in a time warp since 1966; the O'Callaghan case was heard in 1965 but its correct citation is 1966.

I wish to quote the judgment in the Supreme Court of the then Chief Justice, Cearbhaill Ó Dalaigh, at paragraph 1.26 of the Law Reform Commission's report. He rejected the likelihood of committing further offences as a reason for refusing bail when he stated:

[2174] This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail.... In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.

The then Chief Justice reiterated the primacy of the right to liberty as enshrined in Article 40 of the Constitution. Members do not have any argument with that primacy, but times have changed and the public perceives that it is under threat from the menace of crime. People are afraid and vulnerable. Changes to the bail laws are long overdue. If somebody made a bail application and said: “I will turn up for my trial and I will not interfere with witnesses but, if you let me out this afternoon I may be on the job tonight”; it would not be a good reason to refuse bail. That offends against common sense and in the view of the people it offends the common good.

As a general principle, the Fianna Fáil Party unequivocally supports the Bill. Unfortunately, the Minister cannot take credit for this great innovation and act of courage upon which she feels the Government has embarked by proposing to introduce a bail referendum.

Mrs. Owen: Why not?

Mr. Mulcahy: On the issue of bail reform the Government is guilty of gross delay which amounts to negligence. On 25 January 1994, the then [2175] Minister for Justice, Deputy Geoghegan-Quinn, referred the matter of bail to the Law Reform Commission via the Attorney General, which is the correct channel. On 17 August 1995, this report was submitted to the Attorney General and also, presumably, to the Government. What did the Government do in the remainder of 1995? What did it do for the first half of 1996 in relation to bail reform? It did nothing. The Minister conceded earlier there was no legal complexity to cause a delay. She said there are no great complexities of law involved.

Mrs. Owen: If my speech is going to be misinterpreted I think I have the right to speak.

An Cathaoirleach: I am sure the Minister will have a chance to reply.

Mr. Mulcahy: I will read the entire paragraph so that the Minister can be sure she is not being misinterpreted:

The amendment which is being proposed is relatively straightforward. There are no great complexities of law involved nor sophisticated technicalities at issue. What people are being asked is whether they agree with the idea that it should be possible to introduce laws which would allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person.

The Minister has admitted that this was a relatively straightforward amendment. Unfortunately, as both she and I know, and as the people of Ireland know, this Government was in a deep sleep of complacency when it came to the law and order question until the terrible murder of Veronica Guerin on 26 June 1996. Lo and behold, six days later on 2 July 1996, there was a press release and an announcement that a bail referendum was to be held. Why was that announcement not made a few weeks [2176] after the Law Reform Commission report landed on the Minister's desk on 17 August 1995? Why did the Minister sit through one of the worst crime waves in the history of this State without bothering to bring forward what she has called a straightforward and non-complex matter? Could she explain why she took it upon herself to defeat Deputy John O'Donoghue's Private Members' Bill bringing forward such an amendment? That Bill was defeated on 4 October 1995. How many victims of crime could we have saved from bail related crime if the Minister had moved with more alacrity? It is embarrassing for the Minister, but as Deputy O'Donoghue pointed out in the Dáil, her rationale for going against his Bill was flawed. The Minister said:

Not alone has Deputy O'Donoghue brought forward his amendment at the wrong time [whatever that means, certainly too early] but he is putting it in the wrong place.

The Minister argued in the Dáil, and I am sure she will contradict me if I am wrong——

Mrs. Owen: No, I will not.

Mr. Mulcahy: Then she accepts what I am saying is correct. She argued that Article 38 of the Constitution should be changed. Having criticised Deputy O'Donoghue and saying that Article 38 should be amended, what does she do? She amends Article 40 of the Constitution which was the Article Deputy O'Donoghue proposed she amend. Therefore, the Minister's speech to the Dáil rejecting his Bill was flawed. The facts speak for themselves and, if the Minister is big enough to accept that and say that her reasoning was flawed, she would be doing honour to both Houses.

The second reason this Bill has been delayed is that the Minister's colleague in Government——

Mr. Belton: It was not delayed; it is in the House.

[2177] Mr. Mulcahy: ——Deputy Quinn did not provide enough prison places to effect the change in the bail laws. On 9 October 1996, speaking on the Criminal Assets Bureau Bill, the Minister for Finance said:

I am the person who proposed postponing Castlerea prison because, at the time [I presume we are referring to February 1995] the programme for its construction would not have created extra prison places until 1998.

That decision was also changed six days after the death of Veronica Guerin when we had all these press releases.

Mr. Belton: The Senator is raving.

Mr. Mulcahy: Ruairí Quinn said he was the person who proposed postponing Castlerea prison. Did the Minister agree with that decision at that time?

Mrs. Owen: I will invite the Senator to the opening of Castlerea prison which would not have even seen the light of day if his Government had a say in it.

Mr. Mulcahy: I hope the Minister will show some courage and say whether she agreed or disagreed when Ruairí Quinn proposed halting construction of the prison.

Mr. Belton: It is Minister Quinn.

An Cathaoirleach: I would remind the Senator that when he is referring to members of the Government he should refer to them as “Minister”.

Mr. Mulcahy: My apologies. This Government is guilty of gross negligence and delay with regard to its handling of the bail issue. In January 1994 the Minister for Justice submitted this matter to the Law Reform Commission and its report has been available to this Government since 17 August 1995. Through the remainder of 1995 and during the first half of 1996 this Government [2178] sat on the report and did nothing. By the time the necessary bail legislation has passed — presuming the referendum is passed — we may well be in 1997 before we have new bail laws. Because of this the Government should apologise to all the victims of bail related crime between the date they voted down Deputy O'Donoghue's Bill and when we have new bail legislation.

Mr. Belton: The Senator is getting worse.

An Cathaoirleach: I am sure Senator Belton will have an opportunity to make a contribution later.

Mr. Belton: There were many interruptions here yesterday.

Mr. Mulcahy: For too long the emphasis has been on protecting the rights of the perpetrators of crime. It is high time we put the emphasis on protecting the rights of potential victims. Fianna Fáil strongly supports this Bill but feels that it is at least 18 months too late. I reiterate that I believe the Government should apologise for the delay. It is guilty of not bringing forward bail proposals more speedily.

Mr. Neville: I warmly welcome the Bill. For many years I have called for a change in the bail laws. The present situation is ludicrous where criminals are released onto the streets to reoffend on the same day as charged and the courts are not in a position to deny bail. We have debated this issue on many occasions over the past seven years. I remember raising this issue as far back as 1989 when we outlined the difficulties which were arising in the area of bail, especially in Dublin, and the fact that drug offenders were released on the same day as arrested to commit further offences.

I can recall in the four years before this Government came into office there were three attempts by a Fine Gael spokesperson to introduce a Bill to amend the bail laws. Deputy Barrett introduced a Bill which was voted down [2179] by a Fianna Fáil led Government. Deputy Jim O'Keeffe introduced a Bill in 1992-93 which was voted down by the Government. In 1994 Deputy Gay Mitchell introduced a Bill which the then Minister for Justice, Deputy Geoghegan-Quinn, said in the Dáil she would refer to the Law Reform Commission. That was the response after four years of campaigning by Fine Gael to have something done on the bail issue. She did send it to the Law Reform Commission but she did not ask for recommendations because that was only a ploy after four years of campaigning by Fine Gael. After 22 months in office, this Minister has brought a Bill before the House.

I do not accept the criticism levelled at the Minister by the previous speaker. This Minister will go down in history as one of those who tackled the law and order issue in a very professional way. We are already seeing the fruits of the work she did before the summer recess in the law and order area in the many arrests in Dublin and the attempt by certain serious criminals to flee the country because of changed circumstances. We should take this opportunity to congratulate the Garda and the new Garda Commissioner on their work in using the laws introduced by this Minister which will reduce professional crime — unfortunately, we can never eliminate it — and drug trafficking which has been a cancer on this society, not just in the past 22 months but in the past ten years at least.

There is a growing confidence and belief, which did not exist until quite recently, that this problem can be tackled. Before the changes in the law were introduced people felt that drug trafficking and the escalation in professional crime could not be halted. We now see it being reduced and we should compliment all those involved. Some of Senator Mulcahy's party colleagues have recognised the improvements which have taken place over the past six months in the area of crime and it would be gracious of him to do likewise. It is [2180] to be hoped that, with the continuing introduction of changes, such as those in this Bill, the application of more resources, the 800 prison places which will come on stream and more efficiency in the courts, the criminal fraternity will see the writing on the wall and there will be an increase in the level of convictions, serving of longer sentences and more control of criminal activity.

I welcome the changes proposed by the Minister in regard to deposits for bail. I was amazed to learn that little money is ever forfeited by people who secure bail for others. I assumed that if somebody deposited £10,000 or £20,000 as security for a person to be released who then did not turn up for trial, the money was forfeited. It is a welcome change that cash or its equivalent will have to be put up front by those securing the bail of others and if a person commits an offence while on bail the security can be confiscated by the State. That will be a significant, although not the most important, motivation for someone not to commit a crime while on bail. We welcome the recent appointment of additional judges and the extension of court sittings. We look forward to an early report from the working group on the courts.

Side by side with the issue of bail I have always raised the question of the right to silence. It is difficult to understand how professional criminals can use the loopholes in the law to avoid giving a reasonable account of their whereabouts or activities. Anybody who is innocent or has nothing to hide has no difficulty accounting for their actions. Professional criminals and subversives are very apt at not answering questions by staring at a point on a wall for indefinite periods. Nobody is saying that anybody should be convicted on the basis that they remained silent, but there is a precedent for the courts taking inferences from it. If one refuses to give a blood sample when charged with drunken driving, the court may take an inference from that when considering the case. The Revenue Commissioners also take inferences from a failure to [2181] provide proper information. It should be handled delicately but it should be dealt with.

We have discussed this at length over the years and the issues are well known. We hope the Bill will have a speedy passage through the House.

Mr. O'Toole: I welcome the Bill. We had a debate on this and related matters in the House some time ago and the Minister indicated her position at that stage. She has been very consistent since her appointment in her commitment to this issue.

There will be a general welcome for this Bill, although it raises concerns for many people in regard to the issue of civil liberties. Over the last number of years, in order to protect society it has become necessary to restrict it; the common good is determining tighter parameters and constraints on normal civil liberties. That is a reflection on a changing world and is not to be welcomed. On the other hand, people have spoken very loudly on this issue. There has been a strong reaction to the wave of crime, the stories of godfathers and the criminal activities of nicknamed figures who have become well known through the media. These people are giving the impression they have taken over the streets of the city and seem to have taken control of people's lives. They are in charge of the supply of and demand for drugs, and this House has debated the difficulties which that creates.

It is a worrying problem and a poor reflection on society that the vast majority of the prison population should come from easily recognised, definable areas of high disadvantage. This correlation between areas of higher disadvantage and high prison population is and must be a matter of huge concern. Whereas I recognise that law and order is a huge item on the political agenda, that there is great public demand for it and that the argument “the harder you hit them the better” finds a great resonance in the pubs, clubs and lounge bars, we have to take a clearer and broader line on it than that.

[2182] On the question of bail, I have been reading with interest the Irish and English versions of the proposal. Bhí mé ag féachaint go speisíalta ar an áit a chuir an tAire an focal “reasonably” and I found the syntax of it odd in English. Ag féachaint ar an leagan Gaeilge, feicim go bhfuil sé mar an gcéanna agus go bhfuil an rud céanna á rá sa dá leagan, sé sin “sa chás go measfar le réasún é a bheith riachtanach”. The English version uses the form “where it is reasonably considered necessary”. I take it the Minister means not that it is something which might be considered to be reasonably necessary but something which would be considered to be necessary after reasonable consideration. It is a fine distinction which has not come across in the debates to date, or at least if it did I missed the subtlety of it until now.

I agree with the distinction the Minister has made. It is important that it would be necessary to refuse bail and, therefore, whether it is necessary that it be decided after reasonable consideration, or as it says sa leagan Gaeilge, “sa chás go measfar le réasún é a bheith riachtanach”. Caithfear an rud a bheith riachtanach. Muna bhfuil sé riachtanach ní chóir go dtógfar an chéim sin in aon chor, ach i gcás go bhfuil sé riachtanach agus go measfar le reasún é a bheith riachtanach, it is a very fair course of action to take. Perhaps the Minister would clarify that in her response. I agree with it.

In regard to the outline of the proposed legislation, it is very difficult to write a speech such as this because the speech itself will be half a page and the Minister will then describe the legislation she plans to bring forward. Everybody will agree with the requirement in the planned legislation that cash or its equivalent would generally be required to be lodged in court. I cannot imagine any reasonable person objecting to that.

It is proposed that in the new legislation conditions will also be attached to bail, that the accused must be of good behaviour and that bail money can be forfeited if an offence is committed [2183] while the accused is on bail. That is an interesting concept. I presume the Minister is suggesting that, in the event of a person being found guilty of an offence committed on bail, the bail money can be forfeited. I would be interested to see how the legislation provides for that. I applaud the intent but I am not sure how the Minister will make it work. This will be an argument for another day and I look forward to it.

I confess some disappointment at the third proposal. We raised this issue the last time we discussed this issue. The Minister proposes that the new legislation will strengthen the provisions of the 1994 legislation relating to the imposition of consecutive sentences for offences committed while on bail to ensure as far as possible that an offender is always worse off in terms of penalty where an offence is committed on bail. Perhaps I misunderstand it, but I do not think what the Minister says here is logical. She wishes to ensure as far as possible that an offender is always worse off in terms of penalty where an offence is committed on bail. I will take a simple example. A person is accused of a crime and is granted bail. While on bail he or she commits another offence and is charged with it. He or she is found innocent of the first offence but guilty of the second. That person will not be any worse off for having committed an offence while on bail. There is an issue here and I hope I can progress this argument logically.

Mrs. Owen: Both cases would not be tried at the same time.

Mr. O'Toole: I understand that, but it does not matter. I am only making the point that the fact the second offence was committed while on bail becomes irrelevant if the person is not found guilty of the first offence. Consecutive sentences can only be imposed where there is more than one conviction. I raise that because the last time we discussed it I put forward the proposal — I also put it forward privately in discussions [2184] with the Minister — that the only way to deal with that issue is to ensure that any fine or prison sentence imposed for crimes committed while on bail should carry a 50 per cent increase or be doubled.

Enabling legislation would be needed to implement this. It would mean that any time a person was convicted of an offence committed while on bail, they would be worse off. I know that is simplistic; it has to be at the level at which we are talking here because the legislation has not been drafted.

I also recognise that under the 1984 Act — I stand to be corrected on this — judges have the power to make the penalty more severe when a crime has been committed while on bail but, as the Minister says, they will not do it. That is why — I never thought I would hear myself say this — the arrangements made in this regard must be mandatory. I am against mandatory sentences and have always opposed them because judges should be required to think and to make a judgment and judgment does not sit well with mandation. Judges should be good at their jobs, they should come to a decision, form a judgment and impose a penalty. The exercise of these functions always has to be subjective and judgmental. I do not like mandatory sentences for that reason but there should be some mandatory aspect to the imposition of penalties for crimes committed on bail.

If I take the Minister's last sentence in that particular section, which reads “to ensure as far as possible that an offender is always worse off in terms of a penalty where an offence has been committed on bail”, we could get rid of the words “as far as possible” and make it mandatory. There would be wide acceptance of this and I think civil liberties people would agree with it because it does not take from any of the protections in law for civil and personal liberty and for the requirement to be proven guilty beyond reasonable doubt. All those things would still stand and I would go along with that.

[2185] The Minister might consider another provision. Perhaps she has already considered it, although it might annoy some people. People would welcome the idea that, following a conviction and before sentence is imposed, a person's previous record for sentencing would be made available to the judge. I do not know if this is done in some cases. I am not sure where the law stands on this, but it is fair in any code of discipline that penalties would increase in severity where an offence is committed more than once and that a judge would be entitled to take the person's previous history in those areas into consideration. I am not sure of the extent to which that can be done at the moment. It is important to go back to fundamental principles. The law is there to protect the common good and the common good is best protected by the judge imposing a sentence in the knowledge of how the common good has been threatened and has suffered because of this person. I would like to hear a detailed response to that.

I accept and support the idea that where bail is being granted, money has to be put up front. I also support the idea, though I find it difficult to visualise legislation for it, that if an accused person is found guilty of an offence while on bail, some of the bail money should be forfeited. I am not sure how those crimes can be linked. On the issue of imposing a penalty on a person who commits an offence while on bail a mandatory arrangement should exist which would require a higher sentencing level. In all legislation which carries maximum and minimum fines, the fines should be increased by 50 per cent or whatever factor is agreed. This could only be done through enabling legislation. I am not suggesting that all relevant Statutes of the last 400 years should be checked and changed.

The fourth issue is that a person's previous convictions should be known prior to sentencing. This is as relevant as many other things that are considered prior to sentencing. The basic principle of the law is to protect people from [2186] those who will hurt the common good or hurt an individual. Therefore, in punishing somebody who has done so, it is reasonable that a judge would be able to query a person's previous criminal record.

I refer again to the supply of drugs and the correlation of disadvantaged areas with the prison population. The only way to tackle with the drugs issue is to deal with demand rather than supply. Drugs, like any other business or industry, works on the basis of supply and demand. People want them and will commit crime to get them; people will do whatever is necessary to supply them.

There are a number of ways we can deal with crime. One is — and I am not proposing this but it is important in the context of this argument — if drugs were decriminalised and made freely available it would no longer be necessary for people to kill in order to get them. There are people who put forward this proposal but I do not support it. The Minister should have a serious look at decriminalising heroin, for instance, and making it a controlled substance. I looked at experiments in the UK, including one in the Wirral near Liverpool, where heroin was used instead of methadone. It was supplied by doctors on prescription using proper, tight arrangements and it was found that people lived a reasonably normal life. Two or three worked as civil servants and the rest had ordinary jobs, but they needed a daily heroin fix to behave normally. That appeared to work. When people see drug addicts on television they realise it is like the picture they had of alcoholism years ago when it was associated with people lying in the gutter. Today people know that an alcoholic can hold down a job and look reasonably normal for long periods of the day. Junkies are similar. They do not look different to a person who does not recognise the signs. In that experiment heroin was decriminalised by making it a controlled substance. We should do more work to see if it can be dealt with that way. I am not suggesting [2187] that it will because I do not know enough about it but I want to have it looked at.

The importance of training young people to say no to any type of drug is a difficult job. This is an area which needs to be advanced. I said time and again, speaking on behalf of teachers, that no matter how difficult it is to take on additional responsibility in schools, I feel that, as teachers, we have a professional responsibility to protect our young people from the scourge of drugs misuse and from becoming victims of exploitation by unscrupulous drug dealers. I do not invite a hang them and flog them response from anybody in the House but even at primary school level we have seen situations where drugs are freely available. There is a problem here and training children to say no is difficult in the current drugs culture. It exists even in terms of the amount of alcohol that is consumed in Ireland. It is part of what we do and what we are. There is nothing wrong with it but a great deal of input is required to explain to children the social nature of drinking as opposed to having it control lives. It is important to invest in this area at education level because it does reap results, however small.

Most of the prison population comes from clearly defined areas. If it is the case that these highly disadvantaged areas are where most of the prison population comes from, we should invest in those areas to try and protect them. Speaking here seven years ago, I made the point that we were fast approaching the time when somebody would propose putting walls around some of the disadvantaged areas; it would be cheaper than building prisons because many of these people were on their way to prison anyway. They were in a vicious cycle of deprivation. They were born into disadvantaged homes and reared in overcrowded substandard houses in areas where poverty and unemployment were endemic. There was no respect for law and order and no trust in the education system. We failed [2188] them in many ways and they simply got into a life of crime and eventually finished up unemployed or in prison. Instead of dealing with why we need more prison places, the reduction of the prison population should be dealt with at an earlier stage by taking action to stop the demand for prison places and for drugs.

I welcome the legislation and the proposal to amend the Constitution. Like many people I too have reservations about the area of civil liberties. I have to live with those restrictions but I support the Bill.

Ms Gallagher: I welcome the legislation. The people are being asked whether they agree that it should be possible to introduce laws which allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person. I always favour a referendum because it allows people to exercise a democratic mandate on issues that they often feel are beyond them and are decided by the powers that be in Dublin.

I commiserate with the Minister who came into office at an unfortunate time. Crime had been increasing for a number of years and it erupted during her ministry which made life difficult for her. As a result this Government has put forward a comprehensive package of measures to tackle crime. All too often we deal with one aspect of crime and forget about the rest. Looking back over legislation, including that introduced by the Minister for Finance, Deputy Quinn, to confiscate the assets of those involved in the drug scene, the Criminal Justice (Drug Trafficking) Act and the Courts and Court Officers Act, it is clear we have been busy over the past few years bringing forward legislation to tackle crime and the related problems. I congratulate the Minister in this regard and on the provision of more judges, extra prison places and the Courts Commission. Each of these measures are necessary in tackling crime.

[2189] We should be slow to amend the Constitution as far as the deprivation of liberty is concerned. However, we live in a world where many believe the system defends and protects the perpetrator of crime more than the victim. That is the perceived reality and it is a matter which must be tackled. Too many people have stories to tell about being robbed on numerous occasions. When my brother's flat was broken into recently it brought home to me that nobody is safe in their home. People in rural areas are frightened to answer the door. We cannot accept or tolerate such a situation.

The bail referendum will not be the solution to all our problems. According to a Garda report, 5,500 crimes were committed by people on bail in 1995; a small proportion of the total number of crimes. The proposed amendment will be only a small part of the solution. We must understand and accept that. I believe the expectation of what the bail referendum will deliver far exceeds what it will achieve. The ultimate aim of the criminal justice system is to put convicted criminals behind bars and to deal justice to those who did not do so to others. It should not be to use the bail laws to take people off the streets and not worry about what happens to them. The system must remember that our primary concern must be directed at convictions and not only detentions.

Be that as it may, we must deal with the reality that the interpretation of 1965 O'Callaghan case has been restrictive in terms of what the Judiciary can do. If read carefully the O'Callaghan judgment provides for more than just two grounds for refusing bail. However, it is taken as read that the case allows bail only on two valid grounds — the danger of somebody absconding or interfering with witnesses. In terms of its subsequent interpretation it has tied the hands of many judges who felt there was a danger a person would commit further crimes. In a system which did not penalise a person whether they committed a crime, it mitigated against what a judge could do in terms of justice. It [2190] is on that basis I favour the extension of the discretion of the judge. I am happy to rely on the discretion of judges who have served us well in the past and I trust they will continue to do so.

If an accused person has a history of convictions or has committed an offence while on bail, they should not be given bail and the judge must be given discretion in such circumstances. How far we go beyond that warrants further consideration. The proposed amendment to the Constitution allows us to define the right to liberty in accordance with our law. However, we should avoid a knee-jerk reaction. I hope we will be able to stand over the legislation ultimately brought before the House and that it will stand the test of time.

It is difficult for us to accept that we have legislation in place which, for one reason or another, is not being used as it should and as it was intended. Previous speakers referred to the Criminal Justice Act, 1984, which allows for consecutive sentencing. Judges have failed to use their powers under that legislation to impose consecutive sentences. This week there were convictions for the use of angel dust. Four concurrent sentences were given for four different offences for which someone had been convicted. I fail to comprehend why that is the case. Each offence warrants an individual sentence. The construction given by the Judiciary that it would consider the ultimate sentence vis-a-vis the nature of the crime is not one which warrants absolute protection at a time when those awaiting trial feel they may as well be hung for a lamb as a sheep and commit further offences because they have nothing to lose. Consecutive sentencing, as provided for in law, should be implemented. It will be a sad day if we are forced to come back to the Legislature to amend the legislation and make it mandatory to impose consecutive sentences. That is a matter about which I am concerned.

The issue of suspended sentences has not been raised. People often receive suspended sentences which are not reactivated if they commit a subsequent [2191] offence. If a person has been let off lightly having been given a suspended sentence, there is no reason it should not be reactivated if they commit another offence. It is essential to speed up trial dates. Many of the concerns about detention while awaiting trial are based on the fact that we are depriving someone of their liberty, a fundamental right, pending trial. Every effort has been made by the Minister to appoint more judges and to have longer sittings but procedural amendments could be made to the system, such as introducing pre trial motions more regularly. This would deal with the issue of whether evidence is admissible at an earlier stage. That would either force the accused into an admission of guilt and thus bring the matter to a head or let the prosecution realise it does not have a case. There is no reason that should not become part of the system of legal procedure. It would help speed up the progress of trials.

I have a number of queries about the Bill outlined by the Minister. I noted what Senator O'Toole said with regard to the interpretation of the words “reasonably considered necessary” and that the Minister confirmed the wording was taken largely from the European Convention on Human Rights. I accept that, but UK legislation requires substantial grounds and legislation in Canada requires an unacceptable risk of offending while on bail. I wonder which is the heavier onus of proof and which is the easier? I certainly do not want a situation where it becomes the norm for a garda to give evidence that he has “reason to believe...” in objecting to an application for bail and that the matter would be a foregone conclusion. That requires more thought. I accept the Minister's interpretation of “reasonably considered necessary”, that it must ultimately be considered necessary, but I hope that will be quite clear in the ultimate legislation and in how it is subsequently interpreted in the courts.

I am also concerned about the time limit. My reading of the outline for [2192] legislation is that there will be a review after four months of somebody being held prior to trial. If there has been undue delay in the prosecution, it would be dealt with. However, there is no maximum period for which a person can be detained prior to trial and, having read the report of the Law Reform Commission and studied the system in other countries, it seems most if not all countries provide for a maximum period of detention. I admit the provisions vary but I feel strongly that when one is depriving a person of his or her liberty, it should be for the shortest period of time. When we hope ultimately to have speedier trails, I do not see why we cannot introduce a maximum period because I can only hazard to guess what it would be like to sit in jail and not know when the case is to be heard — that could go on indefinitely. On the basis of justice for all, we should consider a maximum period.

Furthermore, I am concerned that while the Bill provides for review after four months, it is not clear on the outcome of such a review or the resulting action. I would ask the Minister to consider having a review for every subsequent month thereafter? The legislation as presently outlined is not clear on that point. It is not good enough to provide for one review after four months and then leave the matter in mid air. I would welcome clarification on that point.

In studying other countries' legislation, it seems that compensation should be available to some degree or in certain circumstances to those who are unfairly detained and subsequently found innocent and acquitted. Other countries provide for this and, if I may be so bold as to refer to the European Convention on Human Rights, Article 5(5) of the convention also provides for compensation. We cannot be selective in what we take from the convention when it suits us and not provide for redress where a person has been unfairly detained. The issue of compensation needs to be examined.

[2193] There are smaller points. How are we to handle this when it comes before a judge? Must those objecting to bail specify the reasons? This is not clear to me and I would welcome the Minister's clarification on the matter.

I would hope that the reasons for the judge's decision to refuse bail must be specified because justice dictates that a person deserves to know why he or she is being detained.

The right of appeal already exists under the Criminal Procedure Act, 1967. Will that right of appeal apply automatically with regard to the proposed legislation? This is not clear from what I have read to date so I would appreciate the Minister's clarification on the matter.

I presume there will be provision for a different judge at the trial to the one who dealt with the initial application for bail. That would be very important. Whether the history of the person ultimately convicted should be brought into consideration in terms of sentencing, as suggested by Senator O'Toole, is also worthy of consideration but that is a different matter. Everybody going to trial before a judge deserves to be considered innocent until proven guilty through criminal procedures and this should be clarified as the matter is going before the people.

I welcome the fact that the Government is providing about 800 prison places and I know that the work on Castlerea Prison is almost, if not already, completed. We must take note of the fact that remand prisoners are innocent in the eyes of the law until proven guilty and they have rights under international and European conventions. This is not provided for in Ireland as yet and we have discussed this before in the House. If there is to be a separate remand prison, we must ensure we comply with the international and European regulations in that regard. Sometimes I feel we are being asked to decide on the issue at a very preliminary stage when no remand prison is in place yet to ensure the system is adequate. It would be important to address that issue when [2194] the matter is being put before the people because I do not like to see people voting in a vacuum, with a knee-jerk reaction or in the belief that this will be the panacea for all our problems. We need to be honest with the people. We must tell them of the current provisions and what we hope to provide. That is the best circumstance in which a decision can be made.

I have outlined my concerns to the Minister. It is important that we reach a balance between allowing judges the discretion they need in dealing with granting bail and the necessary procedural safeguards. We do not want miscarriages of justice in Ireland. Our system has been good to date and we should not go head over heels with rushed legislation or a knee-jerk reaction. We need to consider the wording of the legislation which will follow the referendum to make sure it will stand the test of time, be constitutional under various tests and provide justice for the victim and the accused.

In that sense I hope this will be a job well done by this Government. Until now, I felt we sometimes place too much emphasis on the need to reform the bail laws, but extreme circumstances necessitate extreme solutions. Although I do not like to presume the outcome of the referendum, my concerns will be dealt with at a later stage and I am happy to let the matter go before the people.

The time element was referred to earlier with regard to the delay on this matter, but when one considers the facts in dealing with the technical areas of liberty and the provisions of the Constitution in that regard, these matters must undergo proper drafting procedures. I do not want to see this rushed as it is too important. I want to see it right.

Mr. Mulcahy: The Minister said it was simple.

An Leas-Chathaoirleach: Senator Gallagher should be allowed make her contribution without interruption.

[2195] Mr. Mulcahy: I was interrupted on several occasions.

Mr. Belton: The Senator deserved it.

Ms Gallagher: I think the Minister was misinterpreted.

Mr. Mulcahy: It is in her speech.

Ms Gallagher: If the Senator reads her speech, the Minister stated that the proposal is simple; the work behind was clearly not simple. The Minister ought to be congratulated for having grasped this nettle and brought forth a proposal which many spoke of before but which this Government brought forward. I have concerns about it. I do not want us to go too far. Maximum periods of detention, speedier trials, compensation and proper remand prisons must be considered. Ultimately, this represents a job well done in tackling crime in our society.

Mr. Farrell: Cuirim fáilte roimh an Aire agus an mBille. This legislation is much needed and Fianna Fáil will support it. If a Fianna Fáil Government introduced such a Bill, I do not believe the previous speaker would support it were she in Opposition. The liberal wing of the Government would come into operation.

Mr. Mulcahy: Hear, hear.

Ms Gallagher: The Senator did not listen to my contribution.

Mr. Farrell: Fine Gael could never be accused of being soft on law and order. The Minister cannot admit it, but it is perceived that the liberal wing of the Government ensured that she was kept on the sidelines.

Mr. Mulcahy: Muzzled.

Mr. Farrell: Yes. It also ensured that she could not act.

Mrs. Owen: The Senator is wrong.

[2196] An Leas-Chathaoirleach: Senator Farrell without interruption.

Mr. Farrell: For that reason a monument should be erected to the memory of Veronica Guerin.

Ms Gallagher: The Senator is making assumptions and is completely incorrect.

Mr. Farrell: There is no way the liberal wing of this Government will challenge crime.

Mr. Belton: Dream on.

Mr. Farrell: Those are the facts.

Mrs. Owen: Whose facts?

Mr. Belton: They are Fianna Fáil's facts.

Mr. Farrell: They are on the record.

Mrs. Owen: What is on the record?

Mr. Farrell: The previous speaker gave the liberal agenda in a conservative manner and it was against her better wishes to do so.

Mr. Mulcahy: Hear, hear.

An Leas-Chathaoirleach: Senator Farrell will address the Chair.

Mr. Farrell: I am doing so. We must take further action, including putting an end to the revolving door system in our prisons. What is the point in people being imprisoned for ten years if they are released ten days later?

Mrs. Owen: Nonsense.

Mr. Farrell: It is not. What about the individual at liberty in England who was released from prison and is now being sought by the Garda?

Mrs. Owen: He served a prison term of 11 years. The Senator should not misrepresent the situation. The person in [2197] question was not released after ten days, he received a life sentence and served 11 years.

Mr. Farrell: He did not serve a life sentence.

Mrs. Owen: He served 11 years.

Mr. Farrell: That is not a life sentence. Such a sentence lasts 21 years.

Mrs. Owen: Nor is it ten days. The Senator should not misrepresent the position.

Mr. Farrell: Prisoners are not serving the full term of their sentences. Any garda will inform the Minister that they are sick to the gills of that situation. They place people behind bars only to see them in the street and be given the Harvey Smith a week to ten days later.

Mr. Mulcahy: Hear, hear.

Mr. Belton: We will give them access to a tax amnesty as Fianna Fáil did.

Mr. Farrell: A special unit should be established for drug abusers. As a previous speaker stated, certain people are sent to a special unit in Dundrum when they are charged with a crime. A similar unit should be established to cater for drug abusers; not drug barons who do not use drugs. Unfortunate drug users should be given access to a treatment centre outside Mountjoy Prison. The authorities are not able to keep drugs out of that prison. Many people enter Mountjoy Prison clean and by the time of their release they have become drug addicts. That must be corrected. The only way to do so is to remove drug users from prisons containing criminals. These people need treatment and entitled to receive it. Such treatment should be provided at a high security unit so that they cannot gain access to the streets. Many judges have stated that there is no space available to house young offenders. These individuals are the “Bugsy Malones” of today and they [2198] will be the “Generals” of the future. What is being done to change that situation? Nothing.

I congratulate the residents of housing estates for their brave actions. They should be given more support by the Government and the authorities. There is no point in appointing one garda to serve as a community police officer on a housing estate. There should be a small barracks in each housing estate with two to three resident gardaí. There might be a cost involved but it would help to solve long-term problems in those areas. There would be co-operation and unity between the gardaí and the people who could get to know each other. Until small barracks are placed in housing estates and problem areas, we will never resolve this situation. Gardaí driving around areas in squad cars cannot solve problems and there is no point shouting at the green man. There must be physical communication and people must have access to gardaí they know and trust.

What is being done in our schools? There have been 25 years of free education, etc., and a conglomeration of organisations were established to help people in disadvantaged areas. However, such areas seem to be becoming increasingly disadvantaged. It appears there are no controls regarding whether children are attending school. Why have more officers not been appointed to check that children are in attendance at school? Why is the law not being enforced in this regard? Every child is born good but the environment in which they grow up decides the course their lives will take. If parents will not care for their children, a public school should be established in order that they can be educated and trained. If their parents are not prepared to take action, someone else should.

Fewer than 3 per cent of people living in housing estates cause trouble. However, a small boil on the back of one's neck can irritate the entire body. That percentage of disgruntled people can make life hell for everyone. We should be strong enough to remove [2199] those elements and place them in an environment where they can be educated and trained. They should not be prosecuted or persecuted; they should be shown that they can live decent, respectable lives and become part of the community in a successful and positive way.

There is no such thing as complete freedom, only controlled freedom. Everyone who obeys the law lives under a form of controlled freedom each day. However, those who violate the law do not understand that concept and do as they please. One only has to watch Channel 4 and look at some of the American television programmes broadcast by Sky to see how the youth in such countries behave. They inform their peers and parents that they live their lives as they please. A 14 or 15 year old child has no right to make such a statement because we are subsidising them. If their parents do not do so, it is society's responsibility to inform them that they must obey the rules.

Recently I visited a certain area of the city. There is a religious community there whose property is wrecked by youths riding horses through it, breaking down gates and smashing buildings. It is costing a fortune in security to keep it in order but it is a losing battle. What is being done? Those youngsters should not be allowed to wreck the lives of the members of a religious community who have given their lives to education and helping youth.

Law and order has broken down and unless the Minister puts resources into this area society will become worse. An old man living in County Wicklow was robbed recently and the thieves came back the following week. On telling them he had nothing the old man was shot in the knee. Such criminals go to court only to be given a small fine and to be told they need to see a psychiatrist or some such nonsense. It is not acceptable that a poor man should be lying in hospital having been shot in the knee. An old woman in County Roscommon was locked in a room in her house and, [2200] in her desperation, she tried to get out of the window. She broke her arm and is now in hospital in Roscommon. Is that how senior citizens should be treated? If the problem is that bad in rural areas we must expect it to be far worse in urban areas. We must get to grips with it.

Just like bullies in schools, criminals operate by making their victims afraid. It is time the law made the criminals afraid and stopped patting them on the back. A case may go to court and be adjourned for a month to allow assessments to be carried out on the defendant, who is set free while these assessments are done. These criminals have a good laugh at what they call the “head shrinkers”. They are more alert than the experts who are assessing them.

We must bring in severe laws to deal with the problem. The 97 per cent of the population who live good lives cannot be disrupted and abused by a small group of highly organised and clever thugs. I ran a garage for 15 years and I would not be able to hot wire a car as fast as some youngsters. They are intelligent but their talents are not being channelled in the right way. They grow up in an environment conducive to crime.

The Minister has a tough job and she can rely on the support of Fianna Fáil in her efforts. She must be firm and positive. She must find the money to create prison places and end the revolving door system. There is no point in putting young offenders who are drug addicts into Mountjoy Prison. There should be a secure facility for them so they can have treatment. If necessary, visits should be curtailed to prevent drugs being brought into prisons. This is a serious problem which must be tackled.

Unless we tackle the underlying problems no amount of laws will work. There are many areas of high disadvantage around the country. I have always been against concrete jungles. When I hear planning objections against building in the countryside on the basis that it would affect amenities or views, I [2201] think of the people in disadvantaged urban areas. If they want to escape from that environment the people in rural areas should help them. We must ensure a better dispersal of the population because we cannot allow the position to continue where one and a half million people live in Dublin while the west is denuded.

The pressure on services in areas of high disadvantage should be relieved by moving them to areas of high advantage. If need be, small schools might reopened. What is the point in having low pupil teacher ratios if the pupils can do what they like in the playground? If children are kept in neat environments in small areas where they can receive good training they will become proud of themselves.

We must encourage our children. The examination system is failure oriented, particularly the points system. People who do not get a certain number of points should not be considered to have failed. We must move away from the attitude of failure and engender a positive attitude. It is almost impossible for teachers to educate children because they are almost afraid to look at a pupil lest they be charged with an offence.

We must have controlled freedom. The hooligans must be taken off the streets whatever the cost. The time for kid gloves is over because society must be straightened out. We will not come to grips with the problem by putting all the criminals in one large jail or by having gardaí in squad cars. Police stations should be erected in housing estates so that the gardaí can develop a relationship with the people. In that way we will come to grips with crime and drugs.

When Veronica Guerin was shot many people were named in the newspapers yet nothing was done. I hope a monument is erected to her. Her work has shaken every right thinking person. We are now coming to grips with this terrible situation which is making life a misery. Victims are at last to be considered.

[2202] Mr. Belton: I do not intend to delay the House as others are anxious to contribute. The fact that so many Senators wish to speak shows the concern and interest they have in this important legislation. We look forward to a positive response from the people in the referendum so that bail legislation can be put in place.

The Minister has introduced various legislation and is now putting in place 800 prison spaces.

Mr. Mulcahy: Now putting in place?

An Leas-Chathaoirleach: I ask the Senator not to interrupt.

Mr. Mulcahy: I was interrupted several times.

An Leas-Chathaoirleach: It is not in order to interrupt and the Senator would not have been interrupted had I been in the Chair. I will not allow any interruptions.

Mr. Mulcahy: I do not ask the Leas-Chathaoirleach to allow them but I feel duty bound——

An Leas-Chathaoirleach: Senator Belton without interruption, please.

Mr. Belton: I am not interrupting myself so the Leas-Chathaoirleach had better speak with whoever is interrupting me.

Mr. Mulcahy: The Senator is not interrupting himself?

Mr. Belton: No. Prison spaces will be put in place.

Mr. Mulcahy: When?

Mrs. Owen: I said it the other day.

Mr. Mulcahy: Did the Minister agree it with the Minister for Finance? It is a simple question.

[2203] Mrs. Owen: The answer is to outline how many spaces were put in place between 1989 and 1993. It is a great big zero. We cannot blame the Senator as he was not a Member of the Seanad then.

An Leas-Chathaoirleach: I ask Senator Mulcahy to allow Senator Belton to make his contribution.

Mr. Belton: The Minister has appointed extra judges. This begs the question as to what happened during the last eight years? Why has this Minister had to pull all these factors together within the last 18 months? The answer is obvious. Previous Ministers for Justice were not interested in facing up to their responsibilities. Some of them were more interested in who was leading the party. They spent their time on heaves and more heaves. People then have the neck to attack a decent, upright and responsible Minister who is facing up to her responsibilities for the people. Let anyone answer that——

Mr. Mulcahy: No problem.

Mr. Belton: ——and tell the truth. There are answers but they may not be truthful.

Mr. Mulcahy: On a point of order, is the Senator casting an aspersion on the character of others?

Mr. Belton: Senator Mulcahy is the most disorderly Senator in this House.

An Leas-Chathaoirleach: Senator Belton should not make those comments.

Mr. Belton: He has continuously interrupted me since I started to speak five minutes ago.

Mr. Mulcahy: Senator Belton interrupted me.

Mr. Belton: Not continuously.

[2204] Mr. Mulcahy: I am doing a better job than the Senator.

Mr. Belton: Senator Mulcahy may think so.

An Leas-Chathaoirleach: I ask Senator Belton to address the Bill and ignore Senator Mulcahy's interruptions.

Mr. Belton: I have pointed out it is not my responsibility to take notice of him but the responsibility of others.

Mr. Mulcahy: Whose job is it?

An Leas-Chathaoirleach: I am endeavouring to ensure Senator Belton can contribute without interruption.

Mr. Belton: The crime wave in rural areas declined at certain times and increased at others. There is a question as to whether rural Garda stations that were closed under previous administrations should be reopened. Many people committing robberies in rural areas are not from the area. They have mobile phones and hijack or steal vehicles. While local gardaí have knowledge of what is happening in their area, this aspect must be addressed. Resources are a problem but the Garda need equipment, such as mobile phones and transport and these must be made available to enable them to arrest these people.

Unfortunately, much Garda time is taken up investigating crime. There should be a greater Garda presence on the street. In the last 12 months Garda checkpoints were established making it more difficult for criminals to move around the country and watch the houses of vulnerable people they could burgle. This made a significant difference.

These measures must be implemented in a short time. It would not be necessary to do so had there been an ongoing programme over the years. It is easy to say the crimewave started when this Minister came into office but people do not believe that as [2205] various opinion polls have proved. People are not stupid. The Opposition can make contributions and put their spin on the issue. People are employed full-time to do so for the media. However, people take important issues such as crime, violence and drugs seriously. It is advisable for anyone in public life not to blame an individual Minister who is doing her utmost to deal with the matter. One can only play the hand one is dealt and the Minister was dealt a difficult hand of cards.

Mr. Mulcahy: Especially with the Labour Party.

Mr. Belton: There were years of neglect when nothing was done. The nearest we came to providing extra prison spaces was building a wall without a prison, which never happened before in the history of planning. People asked politicians why criminals could not be put in Castlerea, because they were under the impression that the prison had been built. Under this Minister part of that project has been completed and the main project will go ahead. There will also be 70 new prison spaces in the Curragh this year. This is constructive progress. It is not an outstanding boast for a Government or its supporters to announce that it has built or is providing for a certain number of spaces, but it must be done because people are entitled to the right to live securely and safely in their houses — that is the issue.

This referendum to change the bail laws will help but it is not the overall answer. The Minister has treated this in a constructive manner by providing more spaces, gardaí and legislation. The correct approach is to provide an overall package, not to deal with matters in isolation. I congratulate her.

Mr. Quinn: We are here to discuss bail, the subject of the proposed sixteenth amendment to a Constitution written in 1937. We must be careful about any changes we make to the Constitution and the matter deserves serious [2206] consideration. We have reason to look favourably on this legislation. Senator Farrell referred to Veronica Guerin, whose death drew the nation's attention to the need for action. The Minister has been able to grasp this nettle because of the change of attitude on the part of the nation after this murder.

I came to know Veronica Guerin in the weeks before her death. The talk at her funeral was of her death being in vain, but I suggest it will not be if the successes seen in recent weeks are part of the progress made in the fight against crime. That progress was difficult to achieve because the nation did not give the necessary tools to those who have an obligation to do that job. In recent weeks the Garda Commissioner has given commitments and the Garda team can now be confident the nation is behind it in the fight against crime. We are now giving the Garda, through this legislation, the ability to fight crime without one hand tied behind its back.

I welcome the Minister's speech, particularly her reference to preparing legislation for which constitutional change is not needed. She said one of her objectives was to introduce a procedure whereby bail money could be forfeited if an offence is committed while on bail. The bail area has been a contentious issue in our Constitution since the court case in the 1960s. As the Minister said, a crime committed while on bail deserves a deterrent punishment and a procedure for forfeiting bail money should be introduced along with this measure. I also welcome the Minister's announcement of additional court sittings, speedier trials and the appointment of a working group on the courts, but this is only part of the action that she — and we as legislators — need to take. The right to silence is another restriction on those who are trying to enforce the law and I urge the Minister to consider that issue seriously also.

I have concerns about anything which suggests that a person may not be innocent until proven guilty. This has been the difficulty with bail legislation. However, we have faced up to that in [2207] three other areas in recent years. If a person does not disclose information on a tax return, the assumption built into our law is almost that he is guilty unless he proves himself innocent. Under the drink driving laws, the refusal to give a blood test can lead to a presumption of guilt, although the person may be innocent. In recent months we passed laws on competition which require a person to prove his innocence. We must be careful when taking these steps because we are interfering with a Constitution which has lasted us almost 60 years.

I am in favour of changing the law on bail and for several years have argued for a constitutional amendment similar to that before us. According to market research surveys, my attitude is shared by an overwhelming majority of the public. I welcome that as an indicator of the likely outcome of the referendum. However, the balance of public opinion raises a concern. I hope we see a detailed and calm public debate on the matter before the poll takes place. The amendment should not be put through on the nod.

Every time we amend the Constitution there is a price to be paid — we give up something and get something else in return. Nowhere is this more true than in the present case. In return for improving our ability to prevent serious crime, we are taking away part of the guaranteed framework of rights and freedoms of our citizens. This is a most serious matter but I am in no doubt that this is a reasonable trade off. The benefits will outweigh the costs, perhaps by a large margin. It is also vital, however, that the electorate not only votes “yes” but does so in an informed fashion. We should not take short cuts simply because 80 per cent of people appear to favour this change. We should have as full and comprehensive a public debate on all issues involved as we would if opinion was finely balanced between the two sides. In this context, it is good that public funding will be provided for both sides in a constitutional amendment referendum. This is particularly [2208] valuable in this case, where public opinion is heavily in favour of one side.

I welcome the Bill and hope the people vote “yes”, but it should be an informed “yes”. If that is to happen, we need a debate not only in these Houses but among the public in the next few weeks. An onus of responsibility is on us and we must ensure we discharge it.

Mr. Enright: I am glad the Minister is in the House with this legislation. There has been much discussion for many years on the necessity for changes to the law on bail. Governments have promised referendums on the issue similar to that proposed by the Minister.

The present situation is serious. Following the O'Callaghan case the courts have been very restricted in what they can do in this area. They can only refuse bail in two specific instances, first, where there is a likelihood that the accused would not turn up for trial and, second, where it is considered that the accused would interfere with witnesses or evidence. The proposed change is sensible and I hope it will have the support of the majority of the public.

The Minister has rightly judged that public opinion is unhappy that over the past ten to 15 years people have continually committed crime while on bail. This needs to be addressed. Many people facing serious charges commit further crimes while on bail — for example, by amassing money through armed robbery — on the basis that while charges relating to apprehension for committing such crimes are taken into account, sentencing will not be greatly increased.

Section 11 of the Criminal Justice Act, 1984, specifies that where a person commits an offence on bail a consecutive sentence may be imposed on the sentence for the original crime. Regrettably, this has not been properly enforced, giving rise to the urgent necessity for this amendment, which I welcome and support because it is in the public interest that it be passed.

I will also support any efforts made to inform public opinion on the advantages [2209] and disadvantages of the legislation. There will be discussion at local and national level because there is a significant body of opinion opposed to the measure. Many able, active and intelligent people will put forward the opposing viewpoint. It is important, therefore, that both sides to the argument be listened to carefully to enable people make up their minds on the issue.

A number of changes could be made to the present regime which may in many instances avoid the necessity for remanding people on bail. In the past a person could be remanded by a peace commissioner. This was changed because it was not an appropriate judicial function for such a person to undertake. At present a person can be charged at a Garda station with commissioning an offence and can be released on station bail to appear in court. Alternatively, a person can be charged in front of a judge and detained.

A Garda superintendent can direct that a person be charged with the misdemeanour of common assault, which is not a serious assault. However, under section 47 of the Offences against the Person Act, a case involving a person charged with assault occasioning actual bodily harm must be referred to the DPP for a decision as to whether the person can be prosecuted. Similarly, section 18 of the Act provides for an offence causing grievous bodily harm. Again, this is a felony and must be referred to the DPP for a decision on prosecution. Given that the Office of the DPP is exceptionally busy, it should be possible for the local Garda superintendent or chief superintendent, acting on the advice of the local State solicitor, to prosecute some of these offences without reference to the DPP. Similarly, offences detailed under section 47 of the Act should be proceeded with in the same manner as misdemeanours.

There have been many desirable changes in the District Court and Circuit Court regarding civil matters. The Minister and some of her predecessors [2210] have extended the size of awards that can be made in the Circuit Court from £5,000 to £15,000 and these have now been increased to £30,000. Similarly, a civil decree in a District Court was increased from £500 to £2,500 and again to £5,000.

However, a District Court judge only has the power to impose a sentence of one year, although he can give a consecutive or concurrent sentence of a second year. Will the Minister give such judges extra powers where necessary? For example, providing that an assault occasioning actual bodily harm should be treated as a misdemeanour while allowing a District Court judge to impose a two year sentence would benefit the courts and the legal system. At present most files involving such cases have to go the DPP for a decision on prosecution. Some of those who apply for bail may be held in prison if they committed previous offences in case they intimidate witnesses. The Minister should consider changes along those lines because they would improve the overall position. The District Court would have greater power and cases would be processed more rapidly.

Rather than opting for sections 47 or 18 of the Offences Against the Person Act, many gardaí charge people with common assault. It is one thing for a person to get a black eye but it is a different matter if they get a broken nose, jaw or rib. These are serious injuries but given the problems associated with having matters heard, many such cases are treated as common assault although they are more serious offences. I ask the Minister to consider this aspect.

I compliment the Minister and the Garda Síochána for their efforts in tackling the major crime bosses in Dublin, particularly in relation to drugs. Major improvements have been made and the new Garda Commissioner has adopted a very positive approach. The obvious co-operation between the Minister, her Department and the Garda Síochána is welcome. Great strides are being made [2211] in the efforts to solve the serious drug problem in Dublin.

I am satisfied with the Minister's actions but I ask her to consider extending Operation Shannon, which has been most successful in the last year. A similar operation should continue in the area and I ask the Minister to consider how it could be expanded to different parts of the country. People are concerned about the level of horrific crime committed by certain groups against vulnerable people. Every effort must be made to ensure the perpetrators of these crimes are tracked down and charged. Every part of the machinery of the State must be used to ensure these people are prevented from continuing to commit crimes and are imprisoned.

The results of the Minister's efforts last year are splendid and I hope that, in co-operation with the Garda Commissioner, she will consider how Operation Shannon, or a similar operation, can be extended to ensure that the perpetrators of crimes — for example, the people who assaulted the two brothers in County Wicklow — are apprehended. Regrettably, irrespective of which Minister for Justice or Garda Commissioner is in office, crime will always exist. However, it is our duty to make every effort to ensure crime is curtailed. The Minister's proposals are worthy of support. There have been problems with regard to bail in recent years but the Bill is positive and I support it. I wish the Minister well in her difficult portfolio.

Dr. Henry: I am not sure I welcome the Bill but the Minister is not a member of the whippings and lashings brigade and she must have given much thought to the matter before she decided to introduce the legislation. As Senator Quinn said, anything which takes away people's liberty is a source of concern. I am much more enthusiastic about some other measures the Minister has taken to deal with people involved in crime.

[2212] The appalling delays in the courts have led to many people being out on bail for years and committing other crimes before their cases were heard. This aspect has been important in making the public feel that changes in the bail laws are essential. I am sure many people thought as I did that, when people absconded or committed other crimes while on bail, some of the money lodged for bail was confiscated. I was amazed to discover some months ago that this is not the case; Senator Gallagher made this point earlier. I saw a report which stated that of 189 cases, money was confiscated in only one. It is more important to change such measures than the Constitution, which is a serious step.

I am worried about some of the practical implications of the Bill. The Minister pointed out the ongoing building programme, but it will be some time before those prison places are available. I gather that the second development at Wheatfield will be a remand prison. I hope this will be ready soon because it is important to separate remand and convicted prisoners. This is one of the most serious problems regarding Mountjoy Jail where remand and convicted prisoners are kept together. This is not suitable.

I applaud the appointment of more judges and the fact that the courts sat during the summer to reduce the delays in trials, but more money should be spent on the rehabilitation of prisoners to ensure that when they are released they are not likely to become recidivists and return to Mountjoy Jail within a short time. It is not good that there is only one probation officer for 70 prisoners and the appointment of more prison probation officers is most important not just to deal with people while they are in prison but when they are released.

I am sure I bore the Minister by repeatedly raising the same issues, such as the provision of hostels for people when they are released from prison. However, the fewer people who are committed to prison the better, and not [2213] just from the perspective of the high level of recidivism. I was sad to hear on a recent television programme the Governor of Mountjoy Jail and the chief medical officer admit there was nothing they could do at present about the drugs culture in prison. The Minister is making efforts in that regard, such as the establishment of a special unit in Mountjoy Jail, but these matters take time. I continually hear reports of people who were not involved in drugs when they went into prison but regrettably had addiction problems when they were released.

One of the advantages of being a University Senator is that I have learned constituents who occasionally send me advice. Given that the Minister is in the science rather than the classics stream, I will paraphrase “Facilis descensus Averno” — “easy is the way down to the underworld” — from Virgil's Iliad: easy is the descent into fascism. We must be extremely careful about the introduction of measures which interfere with civil liberties; they must be based on the utmost conviction. I hope the legislation will be implemented as the Minister expects, but I will keep a close watch on this issue if the referendum is passed, which appears certain on the basis of public opinion at present.

Mr. Cosgrave: It has been a useful debate and I compliment the Minister for bringing forward this enabling legislation to ensure a referendum on bail can be held. The serious crime problem is ongoing. Some people with the benefit of good lawyers, were able to use the system and decisions handed down to their advantage. This could no longer continue.

There have been various viewpoints expressed but the Minister has been consistent. She made her statement over 18 months ago having fully considered the matter. Not everybody agreed with her at that time but since then many people have come around to her way of thinking. The Minister reviewed the legislation, the workings of the courts in relation to bail and how a decision [2214] handed down over 31 years ago was not in keeping with today's requirements. Why was this matter not reviewed in the interim? I have called before for legislation to be reviewed on an on-going basis. Finance legislation is updated every year so why should legislation relating to an issue as important as bail and the treatment of crime and criminals not be reviewed regularly?

I welcome this measure although it will not be a panacea for all our ills. Hopefully it will be one part of a package to reform our criminal law in relation to how we deal with people who commit crimes. There are people in prison who should not be there and these matters should and can be addressed in other ways. There are others who should be in prison but because of the legal system or overcrowding they are not. Community service orders have been imposed and these have worked in some areas.

We are dealing with a problem which has evolved over many years. This measure will not be mandatory but it will give the courts an option beyond the two current grounds for refusal of bail; fear of a suspect not turning up for trial and interfering with witnesses. This new measure will partly improve the situation particularly regarding drug related crime.

We all welcome this. I will advocate a “yes” vote and it behoves all elected representatives to avoid being complacent as far as this important referendum is concerned. In some ways it may be more important than previous referenda because, hopefully, it will ensure convictions particularly in cases involving serious crime where people have been injured and attacks on the elderly.

While the drugs issue has been central in recent times, petty crimes are still carried out. We need to ask ourselves how much do people suffer as a result of this? By petty crime I mean everything from handbag snatching to intimidating people in their homes, acts of wanton vandalism particularly in areas where the elderly are suffering at the hands of [2215] a few bully boys in the street. These trouble makers can cause as much fear as the bigger criminals. Petty crimes infringe people's rights, particularly those of the elderly. Some of us have had our car windows smashed. The Minister had a problem near this House some years ago, but at least at our age we are reasonably capable of recovering from such an event. An older person would live in dread of another attack. While petty crime may not be as serious in the great scheme of things one should not forget some of the smaller incidents that occur.

If one is walking down the street at night and trips over a loose kerb one can sue Dublin Corporation, similarly if one slips in one of Senator Quinn's establishments one could sue. In the old days if you slipped you got up quickly and hoped no on saw you. Today people lie down and hope for a large compensation settlement. We should look at introducing a compensation scheme for people who have been attacked, maimed and psychologically scarred. There may have been abuses of and problems with such schemes — perhaps a cap on awards is needed — but if Dublin Corporation can pay out £10,000 for an inadvertent act, the State should give something to the victims of crime. This could operate along the lines of the Motor Insurance Bureau. You will not get people deliberately setting up muggings in order to claim compensation. I hope the Minister will consider such a scheme.

When does the Minister see the legislation being ready if and when the referendum is passed on 28 November? Will it be early in the new year and is it at an advanced stage? Many people might like to vote on their way into work. Could an extra hour be added to polling time? I would favour that as it would facilitate those who cannot vote during the normal polling hours.

We, on this side of the House, support this measure. There will be much debate and it is important that we inform people of the issues involved. [2216] The Minister is to be congratulated on identifying the problem a long time ago and sticking with it despite criticism from certain quarters, which have been mute in recent months. They have come to terms with the reality that the Minister was right about the difficulties which have evolved. It is not a knee-jerk reaction but has been thought out over a long period and deserves our support.

Minister for Justice (Mrs. Owen): I thank Senators who participated in the debate and who, by and large, welcomed the Bill. We would prefer in our hearts not to have to enact this legislation but the reality is that we must. We cannot continue to bury our heads in the sand and pretend the issue of people committing offences while on bail does not require our attention as legislators. Even those who were less than robust in their welcome for the Bill indicated they felt it was a necessary and appropriate response to the situation we have faced for a number of years.

I also thank the Senators who paid tribute to the new Garda Commissioner, Pat Byrne, and the Garda in general. There is no doubt that a huge amount of work, dedication and commitment are being put into breaking the backs of the criminal organisations which have preyed on society for years. I commend that work but I wish to put it in context lest the impression is given, in praising the current commissioner, that the outgoing or previous commissioners were not equally willing to give the same commitment. However, the present commissioner, with his background in operational matters, is very capable of and suited to taking on these criminal gangs which have developed a system of operations to thwart the law.

When this Government came into office we recognised very quickly that one of the difficulties in tackling organised criminals was, as Senator Quinn and others said, that the institutions of the State were not working together as they should have been, although each was working validly and with commitment in its own area. As a result of [2217] initiatives which I, as Minister for Justice, took in July 1995, having worked on them for the previous months, we began to put together the basis on which the Customs and Excise, Revenue Commissioners, Garda, Naval Service and Department of Social Welfare could share their experiences and work together.

I have heard criticisms that nothing happened as a result of those initiatives. However, we would not have the effective Criminal Assets Bureau working and in statutory form if we had not commenced work on bringing those bodies together a year earlier. There were many meetings between the institutions so they could begin to work together and not thwart each other's efforts.

Such co-ordination does not happen easily in other European countries which are now looking at what we have managed to introduce. At a recent meeting of the Council of Ministers I explained about the Criminal Assets Bureau and the way the Naval Service, Customs and Garda were working to find the drugs being brought in here. They said they wished a similar arrangement was working in their countries.

I discovered on a recent visit to the European drugs unit in the Hague that police forces, customs officers and revenue commissioners from some countries only realise that other people in their country are investigating the same crime when they come to that unit. It is only then they find ways to co-operate. Our institutions have agreed and committed themselves to work together, share information and not get in each other's way. We will be an example to other countries. There has been a sense of frustration in this and other debates on crime at that lack of co-operation. We have that co-operation now and Senators can see the results — they do not need me to spell them out.

I was aware today's debate would run the gamut of all the issues related to crime. You will forgive me, a Chathaoirligh, if I do not answer every question which was raised because it was a very [2218] wide ranging discussion. However, I will try my best to touch on most of the points raised.

It is not open to our courts at present when considering a bail application to take into account the question of a person committing serious offences while on bail, even where the accused has a long track record of being involved in the commission of serious crime while on bail. For example, it is not open to a judge to refuse bail to someone who has been charged with a serious sex offence and who has already committed a crime of the same nature, for which they might have been convicted, on the grounds they might commit a similar crime while on bail because of their record.

It is particularly not open to a judge to refuse bail to an offender who has scrupulously turned up on time for all their court appearances and has not interfered with witnesses. Such criminals often make sure they do not breach any of the existing regulations so that a judge has to give them bail because they have turned up in court every time, although the judge would prefer to refuse bail.

No matter how much we change the laws, improve court efficiency or tighten the existing laws within the current constitutional constraints, a judge cannot take such offending into consideration without a change in our Constitution. As some Senators said, changing the Constitution is pretty serious, but it is appropriate and necessary to ask the people to make that change.

In devising the amendment to be put to the people the Government was very conscious of striking an appropriate balance and avoiding, as Senator Henry said, a descent into fascism. We have all been protected as law abiding citizens by the protection of the State against false accusation and false imprisonment. We must bring a balance to our laws and I believe we have struck the right balance in this wording.

Senator O'Toole questioned the wording. Perhaps, as a teacher, he was concerned that it sounds a little clumsy to say “reasonably considered” as [2219] opposed to “considered reasonable”. The reason for that was, first, it is the wording of the European Convention on Human Rights. Second, it is incumbent on the judge and those involved to ensure they have considered with reason whether it is necessary to refuse bail rather than that it is considered reasonable because everybody's view of what is reasonable can be different. It is important that the judge has to be satisfied that it is reasonably considered necessary to refuse bail in order to prevent the commission of a serious crime — it does not have to be proved what kind of crime might be committed.

Senator Gallagher raised a number of important issues which I had considered before bringing the amendment to the Government. She raised issues such as the need to ensure that somebody is not just locked away for long periods once their bail has been refused without that consideration. The time frame of four months is to ensure that there is a list of people who have been refused bail and that a mechanism will be available to the court on an ongoing basis to continue to review the cases of people who have been refused bail.

As the law stands — I am making amendments to it in the Criminal Justice (Miscellaneous Provisions) Bill, 1996 — a person can only be remanded for up to eight days and must then be brought back to court for further remand. We are changing that in the Criminal Justice (Miscellaneous Provisions) Bill so that the second time around the period will be 15 days. It will not be a case of people being put into prison as a result of not getting bail and being forgotten about, even for those four months, because they have to be brought back to court for a continuation of their remand. I am building in a provision to ensure that if the trial has not commenced within four months there is an examination of whether that bail should be continued to be refused.

Senator Gallagher made a suggestion at which I am willing to look: if the trial has not commenced but the judge is [2220] satisfied that the person should continue to be refused bail, we should have a further look at it sooner than four months later. It is not appropriate to put that kind of provision into a constitutional amendment but it would be appropriate to consider it when debating the legislation. I will take note of that suggestion. All I have published is an outline of the legislation because I am precluded from drafting and passing the legislation until the constitutional amendment is passed, if it is passed. This debate gives us a chance to look at what will be in that legislation. The legislation will, of course, come before both Houses and during the debate all sorts of discussions can take place and amendments can be made.

Senator Gallagher made a valid point when she said that perhaps the second period of remand should be shorter than four months lest a person could be eight months on remand. In this way, there is an in built protection if the judge is concerned that somebody is being kept on remand for too long. It could be that either the defence or the prosecution is thwarting the preparation of the trial papers. There could be some such reason which a judge would have to take into consideration.

Senator Mulcahy had a lot to say. I should not be surprised because from what I hear he does this every time. I thought there was a certain amount of blowing one's trumpet. That is perfectly in order because Deputy O'Donoghue brought forward a Bill last year but I would have expected some maturity and a certain amount of graciousness from him.

It is interesting to note that over the last 30 years, certainly in the 15 years I have been in politics, I have often heard this debate about bail and the need to change it. It comes up every so often. The only two serious attempts to make some changes in this area were when a Fine Gael-Labour Government was in power. In 1984, when a Fine Gael-Labour Coalition was in power, legislation was brought in which allowed judges to impose consecutive sentences for crimes [2221] committed on bail. That was a genuine effort by the Oireachtas to send a message to those who were committing crime while out on bail. This Fine Gael-Labour-Democratic Left Coalition is making a real difference to the regime on bail. All this noise about who said what to whom and so on is nonsense, because the proof of the pudding is in the eating and it was during a Fine Gael-Labour Coalition in 1984, and now during a Fine Gael-Labour-Democratic Left Coalition that a real effort was made to bring in appropriate legislation.

Senator Mulcahy is right when he says that when Deputy O'Donoghue's Bill was introduced in the other House I raised a question mark — no more and no less — about where this amendment should go in the Constitution. I am woman enough to say now that I said then I thought Article 40 might not be the right place. I only questioned this issue and I am willing to say that. Article 38 deals with the trials of offences and at the time I thought it was probably a more appropriate place, but on examination — and that is the advantage of giving oneself time to examine things — I am willing to accept that Article 40 is the right place.

Mr. Mulcahy: Deputy O'Donoghue was right yet again.

Mrs. Owen: I am glad Deputy O'Donoghue is more gracious and generous than Senator Mulcahy. Perhaps it is the maturity of the few extra years and the few extra grey hairs. I have no doubt that in ten years' time when Senator Mulcahy is older he will show the same kind of maturity and graciousness.

Senator Enright raised a number of issues in regard to the powers in the District Court. He is probably aware, although it has not come into this House yet, that we are in the process of amending the law in the area of misdemeanours and felonies; under the present law there is an antiquated method of deciding whether something is a serious or a less serious offence. [2222] What are now treated as misdemeanours are quite serious offences and some crimes treated as felonies nowadays would not be considered so serious. It is necessary to do away with that antiquated system and this will have an effect on how the Garda and the District Courts deal with various crimes.

There is probably a case to be made that, because there have been such delays in the Circuit Court, offences are tried in the District Court where there are fewer delays. I am glad to tell the House that, as a result of my initiative and the co-operation and initiatives of the Denham Commission and the Presidents of the District, Circuit and High Courts, the extra sittings in September, the first time ever for the courts, allowed 504 cases to be taken, including 40 very serious criminal offences of rape and murder. That is phenomenal and I pay particular tribute to the newly appointed judges who serviced those extra sittings because we are now beginning to shorten the delays.

I remind Senator Mulcahy that the delays in the courts did not build up over the last two years; they have built up over a long number of years. Regrettably, because they took so long to build up it may take longer than I want for them to be done away with, but in six months time we will see a phenomenal difference. A solicitor complained to me yesterday that they have been called in to account for themselves as to why cases were being listed for a year from now when, if they really put their minds to it, they could have those cases listed much sooner.

Perhaps certain habits in the way people dealt with court cases have become institutionalised because the delays had become institutionalised. Perhaps solicitors and barristers automatically told clients they have no hope of getting their case into court for another year. Now they are being told they had better have them ready within three or six months. Cases that were listed for October 1997 are now coming forward to the beginning of next year. [2223] That phenomenal change in a few short months is as a direct result of initiatives taken by me as Minister and by the Government in appointing 21 extra judges in an 18 month period when only ten extra judges had been appointed in the previous ten years. We have to give credit where it is due, even if I have to take it on myself to give myself and the Government that credit.

A number of other issues, such as the right to silence and escheatment of bail, were raised. Senator Henry is right. Escheatment of bail has not been happening. It is not a matter for the Minister for Justice but is for the prosecution services of the State. In cases where it has occurred, representations are made begging the Minister to intervene and stop the escheatment of bail because the person who put up bail can no longer pay it. That legislation will be tightened up and it will lead to bail being refused because people will not be able to come up with the bonds when they have to give a commitment that the person will be of good behaviour. I have to be careful because the Constitution clearly allows people the right to a fair trial. Setting bail too high has always been a problem because it means that only wealthy people or those with many criminal assets can obtain bail.

As a result of the 1984 Act, which the Oireachtas thought would have the effect of giving consecutive sentences, the judges decided in many cases they would continue to give concurrent sentences or suspend one sentence. They gave sentences of two years for each crime and suspended the second one. This had not been expected to happen and because of this I am changing the law to ensure where a person is being tried in court for two offences, one of which was committed on bail, there will be an additional penalty. Judges will have to be conscious that they cannot suspend all of the second sentence. I perceive it will work that way when the amendment is made and Senators will [2224] have an opportunity to discuss that when it is introduced.

Senator Farrell made a wide ranging speech on revolving doors, etc. I did not invent the revolving door and I hope no one is implying that. I read the Dáil debates from 1991 to 1994 and it was spinning wildly during that time as indicated by the questions and debates of that time. This Government has put in place a realistic programme for cutting down on the speed of that revolving door and by 1998, when this programme will be completed, over 800 additional places will be available in the prison system. Already this year I made 70 extra available and by the end of it there will be another 100 additional places.

Mr. Mulcahy: Will the Minister answer the question?

Mrs. Owen: I do not know what the Senator's question was because he asked so many of them.

Mr. Mulcahy: Did the Minister agree with Deputy Quinn about Castlerea?

Acting Chairman (Mr. Cregan): The Minister without interruption.

Mrs. Owen: I am getting tired of explaining the situation about Castlerea prison.

Mr. Mulcahy: Answer the question.

Mrs. Owen: I will not bother explaining it because——

Mr. Mulcahy: Did the Minister agree with Deputy Quinn?

Acting Chairman: The Minister without interruption.

Mrs. Owen: It was a perfectly valid decision to examine every prison place in this country. As a result, I saved the Exchequer millions of pounds. I have begun to use derelict buildings. I will not knock down, as Fianna Fáil proposed, a fine stone building in Castlerea. [2225] They were going to raze it to the ground. Instead, I will keep it as a memory to the people who built it and I will use and adapt it as part of the prison programme rather than flattening it.

Mr. Mulcahy: Answer the question.

Mrs. Owen: Fianna Fáil wanted to destroy this wonderful weathered cut stone building. By reviewing it, I saved £7 million on Fianna Fáil's Estimate for that prison. That money has been used to renovate a wing in Limerick prison and in building the new remand prison. There has never been better value than that six month review of the prison programme.

Mr. Mulcahy: Did the Minister agree? She will not answer the question.

Mrs. Owen: The prison was devised by Fianna Fáil with funny money in a budget between November and January when it knew it would never have a majority Government. A budget was published with £4 million in it for Castlerea prison. The prison site had not been purchased and the hospital still had patients in it. There was not a smidgin of hope that £1 of it would be spent. The plans had not been drawn up, a tender had not been put out for it, the contract was not signed and no planning consultation had taken place.

Mr. Mulcahy: The Minister agreed with Deputy Quinn.

Mrs. Owen: Fianna Fáil expected us to believe that the £4 million was going to see the light of day. It was funny money when it went into that so-called budget and it was funny money as the budget never materialised.

Senator Farrell raised a number of other issues. Nothing was done by successive Fianna Fáil Ministers about drugs in prison for eight years before I took office. Within three months of entering office I erected a net over Cork Prison which has almost totally excluded drugs from there. Within six [2226] months I modified the cameras and visiting area, and built a search room to cut down the amount of drugs going into Mountjoy Prison. I have opened the first drug free facility in this State in the training unit where 96 prisoners are able to serve out their sentences in a drug free unit. I introduced a new methadone system in Mountjoy Prison and opened a drugs treatment facility for 52 prisoners where they receive full treatment while serving their sentences. A drug free regime has been introduced in three other prisons and hopefully it will be extended to all prisons. That will not ensure drugs will not get into prison because they get in through many nefarious ways, not just through visitors.

Senator Farrell suggested that I remove all visiting rights. It is a descent into fascism to do away with all visiting regimes. I will not be driven by anybody in this House or anywhere else to do away with prison visits. It is a humane way to deal with people, but visitors must also be conscious they should not do anything that damages the possibility of their kin receiving rehabilitation in prison. If visitors pass drugs to their loved ones, I will make sure action is taken. We are proceeding with prosecutions against some visitors who have taken drugs into prison. We have camera proof of drugs being handed over during visits. Prisoners get drugs also when they go out to court, doctors and for education and training reasons. If they are found bringing drugs in they immediately lose prison benefits.

I did not introduce rural policing into this country and some of the questions the Senator raised should have been raised when it was introduced. Rural policing has been good. There are difficulties in making sure people who are assigned to communities can stay there, but there will always be times when the police have to be removed from a rural village or town if a major crime has to be investigated elsewhere. That will continue to happen, but the Garda Commissioner deploys the police he has at his disposal. This is a police force that by the end of 1997 will have been [2227] increased by the addition of 350 recruits in 1996 and 1997, plus 400 extra agreed by Government, plus the availability of 200 extra police officers who will be released from administrative duties by the employment of 200 civilians. If that is not an increase in the police force, I do not know what it is. Some 700 plus 400 extra police will be in place by the end of 1997 and I will leave it to Senator Mulcahy to add up those figures.

Senator Gallagher referred to the availability of judges to decide whether someone should get bail. There will be a “mini” trial and the judge who will hear that evidence will not hear the full trial. If someone's record is being put out, judges will have the power to exclude certain people. Where a court is hearing an application for bail and evidence is being given in relation to the criminal record of the accused — it is important the presumption of innocence exists when a person goes to trial — the court may direct that the whole or any part of the proceedings shall be in camera, shall exclude the public or any particular portion of the public or any particular person or persons except bone fide members of the press during the whole or any part of the proceedings. No person shall publish or cause to be published any information relating to the criminal record of the accused person referred to during the course of the proceedings or other information which would indicate or tend to indicate any such information has been so given. If any person contravenes subsection (2) he or she shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or imprisonment for a period not exceeding six months or both. That will give protection to somebody who is being refused bail that such evidence will not form part of their subsequent trial. That is the present position and I hope people will accept that it will be included in the legislation. I do not intend to make any change.

Part of the Government's programme is to build a 400 place remand prison in [2228] Wheatfield. Senator Henry said remand prisoners were detained with convicted prisoners. Remand prisoners represent about 10 per cent of the prison population, so at any one time there are about 200 to 250 prisoners on remand from the courts. In Mountjoy Prison they are, by and large, held separately in Wing B. I cannot say with certainty there are not times when some remand prisons have to be held with convicted prisoners because of the pressure on space. When on remand, prisoners experience an easier regime, which includes extra visiting time, access to telephones and extra post. In other prisons it is not always possible to keep remand prisoners separate, but the numbers would be small.

We need a remand prison so prisoners on remand can be kept separate, which is the reason the Government has decided the prison in Wheatfield will be a remand one. The type of prisoner on remand is very different to that of ten or 15 years ago when a large number were first time offenders. Sadly, nearly all our remand prisoners are convicted criminals. It is not always a case of segregating first time offenders from convicted criminals. The nature of crime is such that many of our criminals are multiple offenders.

Senator O'Toole raised the question of creating a new offence of committing a crime while on bail. We looked at that but we faced the danger of a double jeopardy. I decided not to create a new offence of committing a crime while on bail because although somebody may be convicted of that crime, they may not be convicted of the original offence. We would face the risk of people being doubly convicted for something of which they were not guilty.

I would like to explain to Senator Mulcahy what I mean when I say the wording in the amendment is not complex. Everybody with a rudimentary knowledge of English will be able to understand what is being put to them when marking their ballot paper. The complexities have arisen since the Law Reform Commission published its [2229] report in late September or early October. It was given to the Attorney General's Office in August to be proof read, etc.

Mr. Mulcahy: That is not in the Minister's speech.

Mrs. Owen: I did not go on to explain that because I assumed somebody with Senator Mulcahy's knowledge of the law would know——

Mr. Mulcahy: The Minister is trying to rewrite her speech, which is unacceptable.

Mrs. Owen: I paid the Senator a compliment. I will try to explain this using the smallest words I can. I said the amendment is relatively straightforward. Everybody who has read it can understand it. The complexities arose in relation to what went on behind the scenes.

If this was not a complex issue, why did successive Fianna Fáil Ministers for Justice fail to deal with it? Deputy O'Donoghue introduced legislation last year because he knew his party had failed to take action. In fairness to Deputy Geoghegan-Quinn, she was only in office for a year. However, the previous Minister successively refused efforts made by Deputy Barrett, Deputy Jim O'Keeffe and Deputy Gay Mitchell to do something about bail. Fine Gael/Labour or Fine Gael made these efforts. Successive Fianna Fáil Minister refused to accept those efforts. Eventually, in 1994 when Deputy Gay Mitchell's motion was tabled in the House, Deputy Geoghegan-Quinn referred the issue to the Law Reform Commission. As it happens, the Law Reform Commission provided us with a deep analysis of the issue. However, the problem was that it was not asked to make recommendations.

Normally, when a report of the Law Reform Commission is published, there are a series of recommendations which the Minister of the day can quickly take up. I had to look at this report without [2230] recommendations and decide what was the best action to take. A range of things could have been done, as has been witnessed by this debate. I was conscious of holding a referendum on bail in isolation from the other actions I was taking, like speeding up the courts, preparing a proper prison building programme and appointing extra judges.

Senator Cosgrave asked when I thought the legislation would be introduced. If this referendum is passed on 28 November — and representations I have received over the past two years lead me to believe it will be — we will be able to prepare the legislation, although we have an outline. Other issues may come up during the debate which I might want to include. The Dáil will go into recess on 20 or 21 December, so it will be in the session starting January 1997 when the legislation will be debated in the House. There will be no delay introducing it. My hands are tied finalising the legislation because I do not want to be found to be acting unconstitutionally. Members can be assured there will be no delay introducing it.

When introduced the legislation will be in the hands of the Judiciary in which I have great confidence and hope; it too is a member of the community and not an isolated body. Judges will go to the polling stations to vote in this referendum. Like politicians, they will be conscious when they sit on the bench to pass judgment on an application for bail, that this is something in which the people will have cast their vote.

I thank Members who spoke for the wide ranging discussion and I hope we will be able to complete the Bill so there will be no delay in putting this referendum to the people. The House must also deal with Committee and Final Stages and the statement for the information of voters which must be put on the card which is sent out.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

[2231] Aontaíodh na Céímeanna eile a thógáil inniú.

Agreed to take remaining Stages today.