Seanad Éireann - Volume 148 - 23 October, 1996
An Bille um an Séú Leasú Déag ar an mBunreacht, 1996: An Coiste agus na Céimeanna Deireadh. Sixteenth Amendment of the Constitution Bill, 1996: Committee and Final Stages.
Acting Chairman Acting Chairman
Acting Chairman: As the substance of the debate on the Bill will relate to the wording of the proposed constitutional amendment contained in the Schedule to the Bill, and since it would be appropriate to have that Schedule decided upon before deciding on section 1 of the Bill, which actually provides for its insertion into the Constitution, I am suggesting that the House postpones consideration of sections 1 and 2 of the Bill until after the Schedule shall have been agreed. This is a procedure which has been adopted on Committee Stage in the Seanad in the case of previous Bills to amend the Constitution, and which I suggest would lend itself to a more logically ordered debate. I would, therefore, formally ask the Leader of the House to move, in accordance with Standing Order 89, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.
Mr. Manning Mr. Manning
Mr. Manning: I move:
That, in accordance with Standing Order 89, the consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.
Question put and agreed to.
Mr. Mulcahy Mr. Mulcahy
Mr. Mulcahy: Tairgim leasú Uimh. a 1:
 AN SCEIDEAL
1. I gCuid I, leathanach 7, líne 6, “Aon duine a athchuirfear i gcoimeád go dtí go dtriailfear é, agus a bhfuil bannaí diúltaithe dó de réir dlí, ní athchuirfear i gcoimeád é mar gheall air sin amháin go ceann aon tréimhse singil is faide ná nócha lá.” a chur isteach i ndiaidh “a dhéanamh.”
I gCuid II, leathanach 7, líne 11, “Any person remanded in custody pending trial, who has been refused bail in accordance with law, shall not be remanded in custody for that reason alone for any single period greater than ninety days.” a chur isteach i ndiaidh “person.”.
I move amendment No. 1:
1. In Part I, page 6, line 6, after “a dhéanamh.” to insert “Aon duine a athchuirfear i gcoimeád go dtí go dtriailfear é, agus a bhfuil bannaí diúltaithe dó de réir dlí, ní athchuirfear i gcoimeád é mar gheall air sin amháin go ceann aon tréimhse singil is faide ná nócha lá.”
In part II, page 6, line 11, after “person.” to insert “Any person remanded in custody pending trial, who has been refused bail in accordance with law, shall not be remanded in custody for that reason alone for any single period greater than ninety days.”.
Deputy John O'Donoghue's Bill, which was ordered to be printed in June 1995 and debated in October of that year, proposed that a person who was remanded on the basis that bail had been refused would not be remanded in custody for that reason alone for a single period not greater than 90 days. I ask the Minister to seriously consider adopting that amendment? Many speakers would agree that it would be unfair to somebody, whoever that person  might be, to be remanded in custody in a case where bail had been refused and to have their trial postponed or delayed for a long period of time. Such a long period would negate the very rationale articulated by Chief Justice Ó Dálaigh in the O'Callaghan case in terms of the personal liberty of a person.
Many speakers today said bringing forward such an amendment is a regrettable step because finding ourselves in a situation where bail must be refused in the first place is not a welcome scenario. The Minister accepted that she got it wrong when she replied to Deputy O'Donoghue's Bill in the Dáil. She accepted that Article 40 rather than Article 38 was the correct one to amend. I ask the Minister to accept there is a great deal of common sense in providing for a ceiling of 90 days because if the proper changes are made to the laws of criminal procedure and the by now ridiculous system of the preliminary examination in the District Court is done away with, it is entirely feasible that trials could commence within 90 days of a person being charged with an indictable offence.
This will give an opportunity to those Members sitting opposite me who expressed reservations to cast a vote in favour of this restraining order on the general power to deprive people of their liberty when, in fact, no charge has been proved against them, which is what we are talking about in this case. We are asking a court to say to somebody who is presumed innocent that he or she will be deprived of his or her liberty not because of the alleged offence but because there is a possibility or probability that he or she will commit another offence if granted bail. If we are making that change to one of the most basic tenets of our judicial system and democracy it is entirely reasonable that there be a 90 day limit.
The amendment proposes after “person.” to insert “Any person remanded in custody pending trial, who has been refused bail in accordance with law, shall not be remanded in custody for that reason alone for any single period  greater than ninety days.” The words “for that reason alone” are critical and they echo the draft in Deputy O'Donoghue's Bill. That is not to say that the person might not be in custody for a period greater than 90 days but it would not be permissible to hold the person in custody for a period greater than 90 days on the bail issue alone, and that is a very important distinction. There may be other reasons to keep somebody in custody and that is why the words “for that reason alone” were used in Deputy O'Donoghue's Bill and in this amendment.
I strongly recommend this amendment to the House. The Minister will agree that in some other European jurisdictions where the right of bail is more severely restricted, there have been many cases where people who have been refused bail were held in custody awaiting trial for one year, two years or even a more lengthy period. I know of a case where an Irishman was accused of a crime and held without bail in a Spanish prison for more than 18 months. I regard that as excessive. To the best of my knowledge, the person was not subsequently convicted of the offence for which he was charged and he was not entitled to any compensation under Spanish law for having served 18 months in prison. There is a great deal of common sense in inserting a time limit in this Bill to amend the Constitution which, as other Senators said, we should be very slow to amend.
As I said at the outset, Fianna Fáil supports the principle behind the Bill and we are determined that no person who is likely to commit a serious offence should be given bail but that is not to say that the State should have an unlimited licence to keep that person in prison without trial at its pleasure. I commend the amendment to the House.
Minister for Justice (Mrs. Owen) Nora Owen
Minister for Justice (Mrs. Owen): suppose it comes as no great surprise to the Senator that I will not be accepting this amendment for a number reasons not least of which is that when we amend the Constitution we must be  scrupulous in examining every single word to be inserted. If one looks back at the history of the 15 other constitutional amendment Bills, an effort was made each time to keep the wording as tight as possible because every single “and”, “but”, comma, colon and apostrophe can have an interpretation which one did not intend and might be interpreted differently in the courts than the way intended. The wording was kept as tight as possible during preparation.
That is not to state that I have not considered the issue raised by Senator Mulcahy. It was for this reason that I built into the outline of the legislation a safeguard that people would not languish in prison without having their application for bail heard a second time. I was particularly worried that people who find themselves on the wrong side of the law might be more vulnerable in that regard. I do not believe that some of the more articulate members of the criminal fraternity would be slow to ensure that their lawyers made a case for them. However, there are others whose friends and relatives might not be looking after their welfare and they might find themselves languishing in prison for six to ten months because someone failed to review their case. More intelligent criminals would scream blue murder within two to three weeks if they were refused bail. I included the safeguard to ensure that the courts will have access to the mechanism of a rollover list to check the length of time people are on bail.
I briefly considered the wording in the amendment and, apart from adding to the Bill and confusing matters, I believe the present wording is simple and without complexity. If it were adopted, the new wording would give rise to certain questions. For example, would it not be open to the defence to delay a case until the 90 day period had elapsed and their client would then be released? As drafted, the amendment states “for any single period greater than 90 days”. However, when that period had elapsed could people not obtain  a further period of 30 or 40 days? The amendment implies that the court case must take place on the 89th day and cannot take place on the 91st, which could represent a travesty of justice.
There are some cases that will take longer than 90 days to prepare from the date on which a person is refused bail. Let us consider some of the awful cases where someone is charged with between 20 to 100 counts of sexual abuse. There is huge amount of work involved in ensuring that the necessary statements were taken and prepared to ensure that a conviction can be validly prosecuted. In the brief time available to consider the Senator's amendment, I discovered that it contains in-built dangers and might have the opposite effect to that intended. I believe the reasoning behind the amendment is the same as that which prompted me to include the four month safeguard into the outline legislation. It would be very unwise to include the Senator's wording in the amendment on which the people will be asked to vote because many defects could be discovered in it. I can imagine the courts driving a coach and four through the wording and it would then have a completely different effect to that which was intended.
I ask Senator Mulcahy to accept my bona fides. I have built protections into the outline legislation that there will be an examination after four months. I also gave a commitment to Senator Gallagher that further consideration would be given where a judge decided that a person should continue to be remanded without bail at the end of the four month period. We will consider the possibility of granting continuing periods of one month for further reviews. A similar position obtained regarding the seven day detention period in the Drug Trafficking Act where the prosecution must cross further hurdles at the end of each period of 24 or 48 hours in order to keep someone in custody, which is valid.
Senator Mulcahy quoted liberally from Deputy O'Donoghue's contribution to the debate on the Bill in the Dáil. The Deputy was the author of the  other Bill and he did not move an amendment to the Schedule in the Dáil. He was correct in this regard. He made comments about the wording and stated that he might have done things differently but that would only involve moving the deck chairs around. Deputy O'Donoghue did not see the need to alter the wording and took my word that there is an in-built safeguard that a person in custody will have their application for bail reviewed again. It would be unwise to divide the House on this issue. I am not against the import of Senator Mulcahy's argument but the voting paper is not the correct place for his wording. I ask him not to divide the House on an issue on which everyone is in agreement.
Mr. Quinn Mr. Quinn
Mr. Quinn: I compliment Senator Mulcahy who has not had a good day in that regard. His intention is worthy and understandable but I cannot support the amendment on the grounds outlined by the Minister. A wording such as this is not suitable to the Constitution. However, it would be suitable in legislation. The Minister's intention to include it in legislation is the correct route to take. I urge Senator Mulcahy to reconsider his intentions regarding the amendment. I understand those worthy intentions because they would solve problems for Members who are concerned about any amendment to the Constitution which removes certain rights. However, the Senator's amendment would be better dealt with by means of legislation.
Mr. Mulcahy Mr. Mulcahy
Mr. Mulcahy: I would like to answer some of the points raised by the Minister. I do not accept that we cannot — the Minister did not say so but I believe it was the basis of her contribution — place time limits in the Constitution. However, a time limit of sorts was included in the divorce amendment. The Constitution contains the habeas corpus procedure which enables an aggrieved person to come before the courts almost immediately to ask that they adjudicate on the legality or otherwise of a detention.  If the Minister is satisfied that cases will not arise where people are detained for unnecessarily long periods, I have no problem withdrawing the amendment.
For the reasons the Minister articulated, a time limit in the Constitution has a greater force than any procedure contained in legislation. I would have been more comforted had the Minister stated that the legislation will contain an absolute time limit. Can she not conceive of a situation where a person could be held without trial for two to three years? Will there be any ceiling? The Constitution or the legislation must contain such a ceiling. There must come a time when everyone knows that the game is up or that a case cannot be prepared.
I do not understand the Minister's point about a defendant somehow frustrating the prosecution's case. It is not up to a defendant or his or her lawyers to assist the prosecution in any way in the preparation of its case. In terms of this debate, if a defendant is already in prison awaiting trial, the State and the prosecution must prepare a book of evidence, serve it on the accused and proceed to trial. I do not understand the Minister's statement regarding a defendant frustrating the preparation of a case by the prosecution.
Albeit that we do not agree intellectually with the Minister on the points she raised, my party's primary concern is that the referendum will be passed. The Minister has indicated that she believes adding these words would result in confusion. That would be the last thing we want. Given the Minister's assurances, I will withdraw the amendment. However, this issue must be addressed in legislation in a concrete fashion.
Most people want convicted criminals to serve their time in prison and do not want habitual criminals released on bail to freely commit other crimes for which they pay no penalty. Nobody wants people held without trial or bail for extended periods.
Tarraingíodh siar an leasú faoi chead.
 Amendment, by leave, withdrawn.
Aontaíodh leis an Sceideal.
Schedule agreed to.
Aontaíodh le haltanna 1 agus 2.
Sections 1 and 2 agreed to.
Aontaíodh leis an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasú agus glacadh an Bille chun an breithniú deiridh a dhéanamh air.
Bill reported without amendment and received for final consideration.
Acting Chairman (Ms Kelly) Acting Chairman (Ms Kelly)
Acting Chairman (Ms Kelly): In accordance with the Order of the House, item 3 will be taken with Fifth Stage for the purposes of debate.
Cuireadh an cheist: “Go rithfear an Bille anois.”
Question proposed: “That the Bill do now pass.”
Minister for Justice (Mrs. Owen) Nora Owen
Minister for Justice (Mrs. Owen): This motion is put pursuant to section 23(1) of the Referendum Act, 1994, which provides that at a referendum a statement in relation to the proposal which is the subject of the referendum may be prescribed by a resolution of each House of the Oireachtas. The purpose is to assist voters at the referendum on the Sixteenth Amendment of the Constitution Bill, 1996, by making available to them a statement relating to the proposal which is the subject of the referendum.
The proposed statement is set out in Irish and English in straightforward neutral terms. It is appropriate that a statutory statement of this type should not attempt to paraphrase or interpret the proposed constitutional amendment. It simply quotes the words which the Constitutional Amendment Bill proposes to add to Article 40.4 of the Constitution. The statement will be printed on polling cards sent to electors and on posters displayed in and in the precincts  of all polling stations. A copy of the statement will also be sent to each postal voter and elector on the special home voters list to whom polling cards are not sent.
Under section 23(2) of the Referendum Act, 1994, presiding officers are authorised to assist electors with a sight impairment or other disability and electors with reading or writing difficulties by reading out the prescribed statement to them where necessary. Having read out the statement the presiding officer will ask the elector whether he or she wishes to vote in favour of or against the proposal and will mark the ballot paper in accordance with the voter's answer.
This information arrangement is additional to the standing provision of referendum law under which copies of the Bill to amend the Constitution may be inspected or obtained free of charge at any post office. The arrangement proposed in the motion is identical with arrangements at all previous referenda, including the referendum on divorce last year.
Mr. Mulcahy Mr. Mulcahy
Mr. Mulcahy: I thank the Minister for bringing forward the Sixteenth Amendment of the Constitution Bill, 1996. It has the full support of Fianna Fáil. The public is dismayed when it is reported that serious crimes have been committed by people on bail. On a rough calculation the number of indictable crimes detected which were committed by people on bail amounted to about 10 per cent of all indictable crimes detected. For every ten indictable crimes committed one was committed by a person on bail. This figure is outrageous. The public has demanded action and we must respond.
This is an important Bill. I agree with the Minister on the need for an informed public debate on this issue. The Minister should write to the commission she set up asking it to communicate with all the television and radio stations asking them to give equal time to both sides of the debate. The recent referendum on divorce has shown us that a full debate is essential. Hopefully,  the Members of the Oireachtas will engage in debate so that the public will be better informed when it votes on 28 November.
Fianna Fáil urges a “yes” vote in the referendum. This is one of the most important amendments ever put to the people. If we can save hundreds, perhaps thousands, of people from becoming victims of crime the work on this Bill will have been worthwhile. There have been too many victims of crime, especially in the recent past, and we must do all we can to combat crime.
Mr. Neville Mr. Neville
Mr. Neville: I welcome the passing of the Bill and congratulate the Minister for her work on it. It is an issue that has been raised on this side of the House in the past. In 1990 I prepared a Private Members' Bill on this issue only to discover when the work was done that it could not be introduced in the Seanad because it dealt with an amendment to the Constitution. We have been consistent in our concern about crimes committed by people on bail.
We have a task to inform the public over the next four weeks. Hopefully, there will be a large turnout to express the view of the people. I am confident the result will be in favour and the opinion polls show that. I hope people do not assume their vote is unimportant because they think the referendum will be passed regardless. They should register a strong protest on the deteriorating crime situation of the last ten years and say to the Minister they support her on this and other measures she is taking against crime and that they urge her to do more.
Mr. Quinn Mr. Quinn
Mr. Quinn: I add a few words similar to those expressed in admiration for the Minister's grasp of the situation and the manner in which she handled questions and the passage of this Bill. It is one more step along the path of fighting crime and one the nation will welcome.
Mrs. Owen Mrs. Owen
Mrs. Owen: I thank the Senators for their contributions and the expeditious  manner in which business has been conducted. I thank Senator Mulcahy, who was on the receiving end of much comment, for the support of Fianna Fáil for this legislation. It is an important message to send out to people that we, when needs be, can unite to enact effective legislation and put aside our differences. I thank the Senator for his interventions and the other Members of his party who spoke. I also thank the Independent Senators who participated in the debate because that again sends a message to people that we are not divided on this issue.
We are as concerned as the many people who have taken to the streets in recent months, as the victims of crime, as the people suffering from crime and as the parents and relatives of those involved in crime. We tend to think that because someone is a criminal about whom we have nasty things to say, they do not have a family suffering terribly. These people also deserve our attention.
The effect of this amendment will be to act as a method of protecting people against themselves and against something they might do. Someone may have committed a crime for which they are answerable to the people by serving a penalty. If they were out on bail, they might commit a worse crime and even take a life. By a judge deciding they should not be out on bail, they are protected from committing a crime which would entail life imprisonment for them and create more victims. What we are doing today is not one-sided. People should remember that when casting their vote.
I especially thank the officials of the Department of Justice and of the Office of the Attorney General. A huge amount of work has been put into this. The wording is simple and straightforward, but there have been long hours into the night debating and considering the complexities of this and the long submissions we received from concerned people have all been read and examined to ensure we do not bring this amendment forward lightly or in a frivolous  fashion. I thank the members of the public who talked to me and officials in my Department and sought deputations from and received hearing from Department officials. I thank the Office of the Attorney General for its great assistance and wisdom in this issue.
Radio and television stations must be conscious of the McKenna judgment and RTÉ have seriously considered their responsibilities as a result of that case. I and Senator Gallagher have participated in one programme in which there was equal representation for both sides on the panel and in the invited audience. All debates on the radio have thus far included representations from both sides.
I remind people of the importance of voting. It is easy to say this referendum will be passed by a majority but I wish to hear the opinion expressed by people through their vote. It is the best message we can send to judges and we as legislators can receive so that we know what we do is responsive to people's needs. I remind people they have until 13 November to register if they are not registered. People may have changed addresses or not noticed they had reached 18. They should be conscious of that and register at their post office. I also remind students at college and away from home that, in accordance with law, they can register in the town where they are at college. The law was changed so that they did not have to return home, perhaps at an inconvenient time, and at expense to themselves and their parents. Students can register in the location where they are at college or university.
I thank all who participated in this debate. We can now proceed to make arrangements for the referendum on 28 November and I hope people will vote in good numbers.
Cuireadh agus aontaíodh an cheist.
Question put and agreed to.
Seanad Éireann 148 An Bille um an Séú Leasú Déag ar an mBunreacht, 1996: An Coiste agus na Céimeanna Deireadh. Sixteenth Amendment of the Constitution Bill, 1996: Committee and Final Stages.