Criminal Justice (Amendment) Bill 2009

The Criminal Justice (Amendment) Bill 2009 was debated in the Seanad for over eight hours yesterday and ultimately passed without amendment late last night. This is from my Second Stage speech:

I made the point on the Order of Business earlier that, unfortunately and regrettably, there did not seem to be much point in debating this legislation because the Government was clearly intent on not accepting any amendments, and that this would render our debate somewhat irrelevant. The Leader, Senator Donie Cassidy shook his head in response to my comment, which I took to be an indication that he disagreed with me. Senator Terry Leyden then indicated to the House that if amendments were brought before the House that the matter could be dealt with during the course of the summer. The Minister has now put that issue at rest and has made it very clear, in no uncertain terms, that no amendments to this legislation will be accepted by the Government and that, to use his words, “we need this legislation now”. Let us be clear about this, there is no intention on the part of Government to permit this House to amend this legislation in any respect today or on any other day.

Notwithstanding the Government’s view as to whether we should be listened to in this House on this legislation, we still have to reflect on our role as legislators. We are paid to come here by the people to deal with legislation. As to what is our role, I accept that the Government has a very particular role, perhaps an enhanced one in the sense that it has the expertise and advice of the Garda available to it and it is dealing on a day to day basis, operationally and in policy terms, with the management of the Department of Justice, Equality and Law Reform. Therefore, it is in a position of expertise far greater than anything available to any of us. I accept that. That is how the system works.

Let us examine our role. I do not wish to oversimplify it but it appears to be the case that a Minister comes to the House to inform us of the changes that need to be made to the law because there is a problem that needs to be addressed and he outlines the changes he proposes we should make. It is our role to ask him to tell us why that is the case and to demonstrate it to us. We then consider whether that explanation is adequate and we either vote for or against the proposals brought by the Minister. I accept that is an oversimplification but it is not an unreasonable description of our role.

If I am correct in that are we not entitled to ask the Minister to do more than simply assert the need for certain legislation? The Minister must demonstrate the need for it to us. He must show us why it is necessary, not just simply by anecdote, the expression of his opinion or the communication to us indirectly of an opinion given to him by the Garda. He must give us some evidence on which we can take the rest of the argument in trust that what he says is necessary. I cannot, and do not, exclude the possibility - I say this genuinely - that these measures are necessary, but I am not prepared to agree to them simply by it being asserted to me without any evidence or convincing argument - in some cases without any argument at all - as to why they are necessary.

This is very serious legislation. We are dealing with the curtailment of rights and the liberty of the citizen, irrespective of what he or she is accused of, and in view of this we are under a bounden duty to exercise the strictest possible scrutiny of any such proposal. That is all I am interested in doing. Senator Quinn, and to some extent Senator Boyle, have expressed the hope that the Minister will return with responses to some of the questions that have been raised. I do not know whether the Minister will do so when he replies to Second Stage. However, he has made it clear that he does not intend moving from his position. That puts us in a very odd position in terms of trying to debate the issue, or any expectation we might have that the Minister might address any of the difficulties we have.

There are two propositions that I hope we all share in this debate. In fairness, I accept that the Minister’s objective is to address the serious problem of gangland crime. I accept his bona fides in that respect. I agree with others that we should also accept the bona fides of others who have raised queries and doubts about the necessity of some of the measures that have been proposed. It is clear that there has been a shocking increase in the level and ferocity of gangland crime, especially in cities. There has been a huge increase in gun murders. What has preyed on many people who have debated and discussed the matter and who observe it in the newspapers is the utter contempt shown by gang members for even basic civility in society, to say nothing of people’s basic safety and their human rights, and the shocking contempt shown for human rights and human life by those people. I completely accept that it has to be addressed in the firmest possible way and I do not exclude any reasonable proposal that brought forward by the Minister for Justice, Equality and Law Reform. That is the first proposition, that there is a major problem to be addressed. There is no use in any organisation, NGO, politician or anybody else trying to suggest that there is not.

We all, including the Minister, share the second proposition also. He appears to have considered introducing some of these measures at various stages in the past year or two but decided against that. The awful murder of Roy Collins brought these matters back onto the agenda and the Minister decided it was time to move. I do not think the Minister has to answer to us on this point. It is clear he too believes the criminal justice system should have integrity and that there must be a basic protection in it for the rights of the accused.

I have never believed in the rights of the accused versus the rights of the victim. That is not a zero sum game. I do not agree with people who say that if one is for the protection of the basic rights of the accused that, therefore, one is in some way seeking to reduce the rights of the victims of crime. That does not stand up to scrutiny. It is clear the Minister agrees there is a need to protect basic rights. He has suggested at certain stages that he could have introduced further restrictions but he determined not to do so because he did not consider that was appropriate or necessary.

The first proposition was that there is a big problem to address. The second proposition is that the integrity of the criminal justice system must be maintained and that the rights of the accused must be protected within the limits that we determine are correct. What has the Minister done in recent months? I find it difficult to accept the point from the Minister, which he made two or three times in his speech, that he did not do this lightly. I hope he did not bring forward the proposal lightly. I presume the discussion in the Department between the Minister, his advisers and the Attorney General took place over a period of months. I presume that is the case but I, rightly, do not know.

Why should the Oireachtas not also have an opportunity to address this matter seriously? Why is that indulgence not extended to the people who are supposed to be the legislators? Sadly, it is because the Legislature is not taken very seriously by the Government. The careful consideration of this issue, which I have no doubt went on between the Minister, his advisers and the Attorney General, is all done now in the eyes of the Minister and all that remains to be done is for the Dáil and the Seanad to rubber-stamp it.

That brings me back to my point that the Minister comes to the House and asserts the necessity for change, such as that the Garda advises it is necessary. The Minister refers to the Garda again and again. The advice of the Garda Síochána would probably be the first item on the agenda if one was seeking to be advised on any of these issues. I accept that, but it is not the only issue that needs to be addressed. The expertise and experience of the Garda is vital in any of these matters but it is not the only issue to be considered. We have Ministers, a Government and a Parliament and they make these decisions. I hope it is not to be suggested, as it was implied almost in the Minister’s speech from time to time, that if the Garda thought something was necessary, ipso facto, it was. I do not accept that. I do not say I accept the opposite either, that simply because the Garda want something it should not be allowed. However, it is not of itself sufficient justification and the measures must be scrutinised.

I hope the measure was scrutinised by the Minister. I believe it was to some extent from something he said in his speech but why can the Parliament not have at least some opportunity to engage in examination, scrutiny and questioning? Why are we being completely excluded from that? The debate in the other House was guillotined and we are being told by the Minister that it does not matter what amendments we wish to put forward, as they will not be accepted. This is in the context of where a piece of legislation solemnly states: “It is hereby declared that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to an offence under each of the following provisions”, which are listed. Let us just pause here. It is an extraordinary statement.

Senator Bacik and others referred to the various issues of concern in the legislation. I acknowledge that the Irish Council for Civil Liberties, the lawyers who wrote to The Irish Times and others are motivated by absolutely the best intentions in regard to these issues. However, it is a bit much for some commentators to bring forth the notion that we are playing the man and not the ball and to suggest that people are motivated by anything other than the wish to see a system in place that respects the rights both of the accused and of victims. We strayed somewhat into that area in this House some time ago before people thought better of it.

There is much in the legislation with which I agree, including the creation of the offence of directing a criminal organisation. As I recall, that proposal was brought forward by my party in the Dáil some time ago, only to be dismissed by the then Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, on the basis that such an offence was too amorphous. As Deputy Rabbitte observed in the other House, it is now included in the Bill. As I said, certain of the provisions in the Bill are welcome.

However, the most striking aspect of the Bill is the momentous statement we are being asked to endorse, namely, that the ordinary courts are “inadequate to secure the effective administration of justice and the preservation of public peace”. I am not persuaded of the veracity of that statement. No case has been made to this House - not even a bad case - that the ordinary courts are inadequate for purpose. It is important to clarify that this Bill is not about the intimidation of witnesses. There are two references to witnesses in the legislation, only one of which - the provision in section 16 allowing for an increase in the penalty in respect of the intimidation of witnesses - is substantive. People should stop conflating witnesses with jurors, as the Minister and others have done from time to time. That is not what the Bill is about.

The main objective of the Bill is to remove certain offences from the jurisdiction of the ordinary courts. I am not persuaded by the case that has been made in this regard. No convincing evidence has been brought before the House to demonstrate the necessity for this change. Only one example has been given in regard to the intimidation of jurors in a trial in Limerick. As I understand it, that trial was moved to Dublin and a conviction was secured. We must bear in mind that convictions are being secured every day of the week, including in many of these awful gangland cases. If a trial cannot successfully proceed in Limerick, it should take place in Dublin. There are many other measures that can be taken in terms of protecting the integrity of the jury system. A new criminal justice building is currently being completed on the quays. Even in terms of the physical environment of the courts and the arrangements that are made in regard to jurors, much can be done to ensure they are protected. There is an unfounded perception in regard to the prevalence of juror intimidation. Even the references to Garda support for these provisions refer to the concern that such intimidation might happen in the future. We have been shown no evidence that it is already happening.

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