15th February 2005
I move that this Bill be read a second time.
I am very pleased to be before you today to present the Criminal Justice Bill 2004 which I consider to be a very important legislative proposal. It contains an essential updating of our law to ensure that criminal offences can be investigated and prosecuted in a way which is efficient and fair and which meets the needs of modern society.
I think in general it is fair to say that the subject of criminal law reform arouses strong public debate in Ireland. I would be disappointed if it did not. Critical examination of any proposals emanating from Government is an essential feature of a vibrant constitutional democracy and I suggest that there are few areas of Government activity where it is more important than when it comes to proposals for reforming our criminal law.
We all agree that criminals should be punished and society should be protected against crime but there is also a fundamental need to ensure that our criminal law respects individual rights and freedoms. Somewhere in between the need, on the one hand, for strong and effective action and on the other, for protection of the rights of the individual, lies a critical balance. A central focus of the Bill which I am presenting to the House today is on finding that balance. I believe that the proposals which I am putting forward in this Bill are so balanced as to ensure that we as a society can face up to the challenges of modern criminality while at the same time continuing to respect fundamental rights and the rule of law.
Time and time again one hears repeated voicing of disquiet that the rights of society to be protected take second place in the quest to ensure fairness to the suspect - in other words that the balance has shifted too far in favour of the accused. I believe this is a legitimate concern which must be addressed and I am doing so in this Bill - while endeavouring to ensure that the opposite does not happen. We must always guard against the balance being shifted too far because that will lead inevitably to miscarriages of justice. I very much welcome the debate which I hope my proposals in this respect will invoke in this house.
The primary purpose of the Criminal Justice Bill is to update our criminal law to enhance the effectiveness of our legal system in prosecuting and punishing crime. The Bill seeks to do this primarily by enhancing the powers of the Gardaí to investigate crime. This is not the type of Bill which a Minister for Justice would bring forward without a process of long and careful deliberation. Indeed this Bill has in fact had a long incubation.
It has its origins in the Report of the Steering Group on the Efficiency and Effectiveness of the Garda Síochána (commonly referred to as the Garda SMI Report). That report was published in November, 1997. While it dealt mostly with the structure and functions of the Garda Síochána, it also recommended certain changes to the criminal law which it stated would enhance Garda efficiency and effectiveness in combating crime. The Steering Group acknowledged, however, that the implications of their proposals would need to be further assessed in the light of the provisions of the Constitution and the European Convention on Human Rights. As a result, the then Minister for Justice, Equality and Law Reform, Mr John O' Donoghue, T.D. established an Expert Group to provide such an assessment and the Group presented its report to the Minister at the end of July 1998. The group was chaired by the late Mr. Eamonn Leahy S.C.
I think that this is a fitting point for me to pay tribute to Eamonn and I know that the House would share the sentiments which I am expressing here today. Eamonn's untimely death was a great shock for all of us, particularly those of us involved in trying to ensure that the criminal law is efficient, effective and fair. We are indebted to him for producing a report with proposals which form the main basis for this Bill. Ar dheis Dé go raibh a anam.
The Report proposed a number of changes in the law including those relating to the power of the Gardaí to preserve the scene of a crime, to issue search warrants in certain circumstances in relation to serious offences, to seize evidence of the commission of a crime and to arrest and detain suspects. The Government approved the drafting of a general scheme of a bill, based on the Expert Group's Report, on 15 February, 2000.
On taking office I decided to review the general scheme. I made some changes to the original scheme and added a number of provisions over and above those recommended by the Expert Group to take account of developments since that report was published in November, 1998. As a consequence I believe that this Bill is very much up to date in terms of providing what the criminal law needs at this point in time. I might also add that I want to ensure that the Bill brings as much added legislative value as possible to the fight against crime and accordingly during its passage through this House I intend to bring forward some additional proposals by way of amendment to this Bill. I will come back to these proposals later.
I should mention also that I am using the opportunity presented by the Bill to make some much needed amendments to the Firearms legislation. The Bill already contains one section dealing with the safe custody of firearms. I will be proposing the inclusion of further provisions which I will mention also in the context of amendments generally.
It will be obvious from this approach, a Cheann Comhairle, that I intend this Bill to fully reflect contemporary needs. It represents a broad ranging updating of the law in relation to the investigation and prosecution of offences.
The measures in the Bill include
As I said earlier the Bill balances the need for effectiveness in fighting crime with the need to uphold individual rights. Because of the requirement that this should be the case the main proposals in this Bill were subject to a detailed examination by the expert group. I would also like to bring to the attention of the House the fact that I also have sought and was grateful to receive the views of the Human Rights Commission on the General Scheme of the Bill. I have sought to take those views into consideration where appropriate. I should add that since publication of the Bill I have received the further views of the Commission on the published Bill, which I am examining. I will make reference during this presentation to some of the Commission's views but because of time constraints, my comments will of necessity be brief. More detailed discussion will of course be possible during the passage of the Bill through the Houses.
Turning now to the detail of the Bill, I would like to briefly outline to the House some of the main provisions. Part 2 of the Bill deals with investigation of offences and as such largely reflects the recommendations of the expert report.
Section 4 aims to correct a deficiency in the criminal law by providing a statutory power to preserve a crime scene; in particular to prevent persons from entering onto the scene and interfering with or removing evidence. The section provides that where a Garda is lawfully in a place where he or she has reasonable grounds to believe an arrestable offence has been committed, he or she can preserve the scene until a direction to preserve the scene can be given by a Superintendent. A Superintendent's direction can last for up to 24 hours. Thereafter the District Court on an application by the Superintendent can extend the preservation direction for up to three periods each of 48 hours. In exceptional cases the High Court can extend the preservation order for an unspecified period.
Section 5 deals with search warrants and amends the existing power of search provided for in Section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997. Section 10 provides for the issuing by a District Court judge of a warrant authorising a Garda to search a place for evidence of certain serious offences i.e. indictable offences involving the death of, or serious bodily harm to, a person, false imprisonment, rape and certain other sexual offences. Section 5 extends the offences covered by section 10 to include arrestable offences, that is all offences which are punishable by imprisonment of five years or more. I hope that the House will agree that the power to get a court authorised search warrant should be generally available to the Gardaí for all such serious crimes. I might add that this general power being conferred is without prejudice to power to search contained in individual statutes. It will ensure that there will be no lacuna where, in the case of individual arrestable offences a search power is not at present available. I am also making some technical amendments to the section. For example the wording of the provision is being changed to the effect that a judge can grant the application if he or she is satisfied that that he or she should do so on the basis of "information on oath". This is the formula of words more traditionally used in search provisions and it usually operates to require a Garda officer to give a sworn affidavit on which he or she may be questioned by the judge. This formula was changed in section 10 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 (and also in the search provisions of the Acts referred to in sections 35, 36 and 37) to "on hearing evidence on oath" This newer formula of words has caused some uncertainty with regard to the practice and procedure to be adopted in seeking a search warrant. In order to put the matter beyond doubt I am proposing to revert to the tried and trusted wording - the necessary changes are being made by way of sections 5, 35, 36 and 37.
The section also provides that a Superintendent can issue an emergency search warrant where it is not practical to get a court warrant because of circumstances of urgency. The Human Rights Commission in their views on the Scheme point out the need for judicial control over issuance of a search warrant. The Commission does not consider that a case has been made for the need for an emergency warrant to be authorised by a Superintendent. The Commission considers that any practical difficulties in accessing District Court Judges could be overcome by other solutions. I agree that judicial control over the issue of warrants is extremely important. The provision in the Bill which provides for emergency warrants is based on similar provisions in the Criminal Justice (Drug Trafficking) Act, 1996 and can only be used in exceptional cases. This was in fact emphasised by a recent decision by the Court of Criminal Appeal in DPP V Peter Byrne. Practical difficulties can arise in accessing District Judges outside of court sittings. Such difficulties were recently highlighted in a Supreme Court case - Dylan Creavan v CAB. The Court found in this case that a judge could not issue warrants if he or she was outside his or her district. I am proposing to rectify this situation by statute by way of an amendment which I will bring forward to this Bill. I believe that such provision coupled with the clear decision in DPP V Byrne will underpin the limited emergency nature of the provision. I remain of the view that the emergency provision is necessary to deal with exceptional circumstances which can arise from time to time, where otherwise crucial evidence could disappear or be destroyed.
Detention Powers
The main effect of section 8 is to increase the maximum period during which a person suspected of having committed an arrestable offence can be detained from the existing limit of 12 hours to 24 hours.
There are a number of existing statutory provisions which provide for the detention of suspects.
Section 30 of the Offences against the State Act, 1939 provides for the detention of a person arrested under that section for up to 48 hours on the authority of the Gardaí. Section 10 of the Offences against the State (Amendment) Act, 1998 amended section 30 of the 1939 Act to provide for a further extension of 24 hours on the authority of a judge of the District Court.
The Criminal Justice (Drug Trafficking) Act, 1996 provides for detention for up to 7 days of a person arrested for a drug trafficking offence, the first 48 hours on the authority of the Gardaí and the remainder on the authority of a judge of the District Court.
Section 4 of the Criminal Justice Act, 1984 provides for 12 hours detention on the authority of the Gardaí.
The overlaps between different Acts can lead to anomalies. For example, under section 4 of the Criminal Justice Act, 1984, a person suspected of murder can be detained for up to a maximum of 12 hours. However, if a person is suspected of a murder and there is evidence of the use of a firearm, then that person can be detained for up to 72 hours under section 30 of the Offences Against the State Act, 1939.
Although the Garda SMI Steering Group recommended extension of the detention period up to 96 hours, and the Expert Group suggested a 48 hour detention period (including rest periods) limited to certain serious offences, I am proposing, for a detention period of 24 hours (excluding rest periods) to apply to all arrestable offences i.e. offences punishable by 5 years imprisonment or more. I am therefore proposing in section 8 to amend section 4 of the Criminal Justice Act 1984, which provides for up to 12 hours detention, to provide for the possibility of a further 12 hours detention on the approval of an officer of at least the level of Chief Superintendent, who must have reasonable grounds for believing that the increased detention is necessary for the proper investigation of the offences concerned.
The Human Rights Commission has expressed concern that the increase in the period of detention in the case of all arrestable offences would raise the possibility that Ireland might violate human rights obligations under the ECHR. The Commission does not consider the case for justifying the extension from 12 hours to 24 hours has been made. I do not accept that the increased detention power risks violating our Human Rights obligations, particularly since the European Court of Human Rights stated in the case of Brogan v UK (1988) that, although finding a period of 4 days and six hours incompatible with Article 5 ECHR, it was not deciding whether in an ordinary criminal case, any given period such as 4 days would as a general rule be incompatible with Article 5. I consider, and the Attorney General advises, that a significantly lesser period of 24 hours should not prove disproportionate in the context of the European Convention on Human Rights. In view of the anomalies in the law already referred to, and in view of the complexity involved in the investigation of modern crime, I believe the increase from 12 hours to 24 hours is justified.
Forensic Samples.
In section 13 I am providing for some amendments in relation to the taking of forensic samples. Section 2 of the Criminal Justice (Forensic Evidence) Act 1990 provides that certain bodily samples - those in what is called the intimate category - which may be required for forensic testing may only be taken with the written consent of the person. Other samples - non intimate - may be taken without consent. Section 13 proposes that the taking of saliva sample - which is at present in the intimate category - be moved into the non-intimate category, and also proposes that mouth swabs - which are not expressly referred to in the existing provision - be introduced into the non-intimate category so that they too may be taken without consent. Mouth swabs, which could contain both saliva and body tissue, are a valuable source of DNA more so than saliva on its own - and can be relatively unobtrusively taken from the person concerned. I am satisfied that in both these cases samples can be taken without interfering with the bodily integrity of the suspect and therefore without the need for formal consent.
The provision also clarifies that hair follicles may be taken without consent. Currently, a sample of hair (other than pubic hair) may be taken without consent but the 1990 Act is silent on whether a hair follicle may be so taken. Hair follicles are a useful source of DNA. The section also provides for safeguards to restrict the amount of hair which may be taken in total and at any one time.
The section also provides for increased penalties for obstructing a Garda who is seeking to obtain a sample, and extends the period from 6 to 12 months for which samples obtained from persons can be retained before being destroyed.
I am not at present providing for the establishment of a DNA databank. It is my intention, however, to draw up proposals for that purpose which would, having regard to constitutional requirements and the requirements of the European Convention on Human Rights, permit as extensive a databank as possible. The House may be aware that the Law Reform Commission are currently examining this matter on request from the Attorney General. They have already published a very impressive consultation paper on the subject, have organised a seminar with all interested parties and expect to produce a final report this year. I very much look forward to being in a position to introduce such a proposal in due course.
The Human Rights Commission have made observations on my proposal in this section. The Commission consider that it is not necessary or proportionate to take samples from all arrested persons. However, I am not proposing that samples can be taken from all arrested persons as a matter of course. Section 2(5) of the Criminal Justice (Forensic Evidence) Act 1990 which will continue to apply to the taking of all samples, only allows for the taking of samples if an officer not below the rank of Superintendent has reasonable grounds for suspecting the involvement of the person, from whom the sample is to be taken, in an arrestable offence, an offence under the Offences against the State Act 1939 or a drug trafficking offence. He or she must also believe that the taking of the sample will tend to confirm or disprove the involvement of the person in the crime.
The Commission also suggested that there should be further safeguards in place in relation to the taking of samples such as that the samples should be taken in private and the number of Gardaí present should not be excessive. Although safeguards already exist both in the 1990 Act and in regulations made under it, to meet the concerns of the Human Rights Commission I have included a provision to allow for the making of further regulations to provide additional safeguards as suggested by the Commission. The Commission has welcomed my proposals in this respect. In this context, the Commission has also expressed concern about the proposal to use reasonable force to take samples. This provision is not now included in the Bill because I consider that the provision of such a statutory power raises complex issues (some of which were referred to by the Human Rights Commission) which might be better considered when the Law Reform Commission issue their final report on the establishment of a DNA databank. The question of a statutory provision in relation to reasonable force could be better explored in the context of the very comprehensive examination that that report will require. In the meantime the applicable law, which is that a Garda can use reasonable force to exercise a lawful power, will continue to apply.
As I have already said, the Commission has made further comments on the published Bill which I am still examining. In particular they have urged the adoption of a code of practice governing the taking of samples and the provision of specific training for the Gardaí. While I consider such matters should be best explored in the context of the establishment of a DNA databank, I am happy to discuss with the Garda Síochána how these recommendations can be effected in the interim.
Admissibility of certain witness statements
Part 3 provides for the admission in evidence of previous witness statements. The need for provisions of this nature was highlighted following the collapse of the Keane murder trial when witnesses who had previously given statements to the Gardaí recanted and refused to give evidence against the accused in court.
The common law rule is that a previous statement made to Gardaí cannot be admitted in evidence as proof of any fact contained in it. The fact that a witness may have previously said something different can be used to attack the credibility of that witness but the assertions in the earlier statement cannot constitute proof of those assertions. Aspects of the rule have been changed by statute; for example in relation to statements by witnesses who have died or who may have been intimidated. I have decided to further amend the law to provide for the admissibility under strict conditions of previous witness statements in criminal cases, taking account of precedents in other common law countries and drawing in particular on the approach adopted in Canada. The relevant provisions are contained in Sections 15 to 19.
Section 15 contains the main provision and it is based on principles applied by the Canadian Supreme Court to the admission of previous witness statements. For the sake of clarity I might mention at this point that the provision is not limited to statements made to Gardaí and could for example include statements made to Revenue Officials. The provision is to apply where the witness refuses to give evidence in court or gives evidence which is inconsistent with the earlier statement. The presence of the person in court is required for cross-examination purposes. This is important because it gives the court the opportunity to observe the demeanour of the witness. Factors necessary for the admission into evidence of the previous statement include that the statement is reliable, voluntary and made by a witness in circumstances where he or she must understand the need to tell the truth. The Court in deciding on reliability may take into account whether the statement was made on oath or solemn affirmation, whether it was video recorded, or where these factors do not apply, if there is other sufficient evidence of its reliability. The court must also take into account any explanation given by the witness for refusing to give evidence, for giving inconsistent evidence or, where the witness denies making the earlier statement, any evidence given by the person in relation to that denial. The statement will not be admitted if it is not in the interests of justice to do so or if its admission is unnecessary. The details of the provisions can be teased out further at Committee Stage.
The Human Rights Commission are opposed to this provision and have made a number of interesting observations on it. I am examining these observations and if there are further safeguards which I can introduce I will of course do so.
Prosecution Appeals
Part 4 of the Bill deals with appeals in certain criminal proceedings. While there are broad defence rights of appeal in Irish law there exists only a very limited prosecution right of appeal. This has its basis in the historical common law rule against double jeopardy i.e. that no-one should be tried twice for the same offence. The existing prosecution right of appeal in relation to cases tried on indictment is contained in section 34 of the Criminal Procedure Act, 1967. It provides for a prosecution right of appeal on a point of law arising from a judge directed acquittal. This right of appeal is without prejudice i.e. it cannot interfere with the decision to acquit the accused. Accordingly the consequences of the appeal are strictly limited to the point of law at issue in the direction. I consider that it is only right that the limited prosecution appeal be extended so that rulings on points of law unfavourable to the prosecution which arise during a trial can be appealed. The main proposals in this respect are contained in sections 20 and 21. These provisions are "without prejudice" and they are in keeping with the "without prejudice" models included by the Law Reform Commission in its Consultation Paper on Prosecution Appeals.
Section 20 extends section 34 of the Criminal Procedure Act, 1967 to provide that the Attorney General or the Director of Public Prosecutions, if he or she is the prosecuting authority in the trial, may on a without prejudice basis, refer a question of law arising in the court of trial to the Supreme Court for determination. As I have said the present right only extends to a judge directed acquittal. Section 21 amends section 29 of the Courts of Justice Act, 1924 to allow for a prosecution without prejudice right to refer a point of law which arises in the Court of Criminal Appeal to the Supreme Court.
The Human Rights Commission is concerned that the "without prejudice" prosecution appeal, although not interfering with a 'not guilty' verdict could serve to undermine the acquittal of the person without the person having an opportunity to clear his or her name. I accept that danger and I have dealt with it by giving the acquitted person a right to be heard on the point at issue while maintaining his or her anonymity. I am also providing for legal aid if the person's means require it. As a further safeguard I am providing that the identity of the acquitted person, insofar as it is reasonably practicable, is not to be disclosed.
Part 5 Miscellaneous Provisions
Part 5 of the Bill deals with a number of miscellaneous matters. I would in particular refer to sections 27, 29, 30, 31 and 33.
Section 27 makes provision for anonymity for witnesses with a medical condition. This provision is intended to deal with witnesses for the prosecution or the defence where public knowledge of their condition would cause them distress and who, in the absence of anonymity, may be unwilling to give testimony. The section provides that a court can in such circumstances make an order prohibiting the publication of any matter which might lead to the identification of a witness. Any person who contravenes an order under this section is liable on conviction to a fine of €13,000 and or imprisonment for up to three years.
Section 29 provides a fixed penalty procedure in relation to lesser public order offences as an alternative to proceedings being taken in the first instance. It is intended that such a procedure would lead to a significant reduction in the demand placed on the resources of the District Court and an Garda Síochána in dealing with such offenders. The provisions are modelled on section 103 of the Road Traffic Act 1961 as inserted by section 11 of the Road Traffic Act, 2002. Section 29 amends the Criminal Justice (Public Order) Act 1994 to provide that two of the offences provided for in that Act, intoxication in a public place (section 4) and disorderly conduct in a public place (section 5), may be dealt with as fixed charge offences. A Garda will be empowered to serve a fixed charge notice on any person of eighteen years or over, either personally or by post, who he or she has reasonable grounds for believing is committing or has committed such an offence. Unless the person pays the charge within 28 days from the date of the notice, or an amount which is 50% greater within a further 28 days, the person will be prosecuted in the normal way for the offence. The section also provides that the Minister can make regulations to deal with certain matters including fixing the amounts payable for the fixed charge offences. I have not yet decided on what the level of charges for these fixed penalty offences should be. However, given that the majority of fines imposed in the courts for these offences would be in the order of €100 the fixed penalty amounts will obviously be less than that amount.
Section 30 amends section 4 of the Firearms Act, 1925 and provides that, where an application for a firearms certificate is sought from a Garda Superintendent, the applicant must, upon application, satisfy the Superintendent that secure accommodation has been provided for the firearm.
Section 31 amends section 48 of the Children Act 2001 to the effect that in Criminal proceedings where a person has been convicted of an offence subsequent to an offence in respect of which he or she was admitted to the Diversion Programme under that Act, the prosecution would be entitled to inform the court of the fact of the admission to the Programme at the time of sentence.
Section 33 is a technical provision which makes it clear that documentary evidence of the receipt, handling, transmission and storage of anything by the Forensic Science Laboratory can be admitted in court.
Proposed Amendments to the Bill
I mentioned earlier that I am considering a number of further additions to this Bill which I will bring forward during the passage of the Bill through the House. These include:
In relation to the firearm amendments, they will broadly deal with better controls on the type of firearms which may be certified. They will include a provision allowing the deeming by Order of firearms which may not be certified. They will further specify certain additional requirements which will have to be met by applicants for certificates and allow for the imposition of conditions on the granting of a certificate.
Among the other proposals being considered are a statutory right of appeal to the District Court of decisions in relation to certificates, the introduction of a new type of certificate, which will allow young persons to be trained in the use of firearms for sporting purposes and provisions to cater for the needs of elite shooters who take part in international events such as the Olympic Games.
In relation to firearms offences, I am considering increasing the sentences for the more serious range of such offences, including the possibility of mandatory minimum sentences in some cases, as well as a new offence of illegally modifying a firearm, for example sawing off a shotgun, and the imposition of severe penalties for this offence.
Finally, I am seeking to establish a statutory basis for a period during which firearms can be surrendered to the Garda Síochána.
In relation to fireworks I wish to use this opportunity to signal also that proposals in relation to tackling the illegal use of fireworks are being developed and a policy consultation document has been issued in this respect. However, in the interim, I am proposing to bring forward proposals by way of amendment to this Bill to increase penalties for fireworks offences.
I could of course wait and have a further Justice Bill to deal with these matters but this House will appreciate that the wheels of the legislature can move slowly and there is a need for us to optimise the opportunities we have got to ensure maximum protection for our citizens within an optimum time frame. My approach is to ensure that this piece of legislation can be fully utilised for maximum protection against crime now. I would ask the House to accept the bone fides of my motivation and of course I would very much appreciate your co-operation in this respect.
Safeguards
This Bill must of course be seen against the background of the introduction of the national scheme providing for the mandatory audio/visual recording of interviews with person detained in Garda custody under certain detention provisions, which will include those proposed in this Bill, when enacted. It is most important that this Bill be seen also in the context of the Garda Síochána Bill, 2004. That Bill, which has been widely welcomed, will, when enacted, establish the Garda Síochána Ombudsman Commission, a new independent body to replace the existing Garda Síochána Complaints Board. I accept without qualification that hand in hand with the availability of extra Garda powers there must be a new approach to ensure that there is independent supervision of how these powers are exercised. The new Garda Síochána Bill will provide for such an independent authority.
Conclusion
I referred earlier to the importance of balancing the need for the necessary powers to deal with crime and provide protection to society with the need to protect the fundamental rights of the individual. I believe that this Bill together with the safeguards which will accompany it will ensure that the balance is correctly set.
I commend the Bill to the House and I very much look forward to hearing the views of and debating with, Deputies on it.
Respect for rights in the penal system with prison as a last resort.