Chairman, ladies and gentlemen.
I am very pleased to have the opportunity to open this Conference on developments in the criminal law. Looking at the programme, it strikes me that the conference is both valuable and timely. I say 'timely' because I see events such as today's as part of the discussion I am keen to encourage on the future direction of the criminal law. As you will be aware, I have recently established a Review Group to consider the scope for changes in certain areas of the criminal law but I will return to that later. For now, let me begin by thanking 'Thomson Round Hall' for their initiative in organising this Conference and to congratulate them on assembling an impressive range of speakers who will no doubt provide valuable and thoughtful insights.
My remarks will concentrate on the recently enacted Criminal Justice Act 2006, which, I am pleased to note, features prominently in today's programme. This Act is, I believe, one of the most significant and reforming pieces of criminal legislation in a long time.
Before outlining some of the main provisions of the Act I will give some context and background on its purpose. The Act's primary purpose is to update our criminal law and to enhance the effectiveness of our legal system. We all agree that the criminal law must be kept up to date and relevant, otherwise respect for the law is diminished and it is not seen to be responding to the needs of society. From my perspective as Minister, I also accept that one of the foremost duties of any government is to ensure the safety and security of citizens. Society expects a criminal law regime that not only affords it protection but one that also allows people to plan and to conduct their private and business lives without interference from criminals. We must meet those challenges if we are to retain a high degree of confidence in the efficacy of the law.
The Criminal Justice Act must be seen as part of a much larger package. On the one hand, the Act confers additional powers on the Gardaí in a number of areas - for example, section 9 which provides for an extension in maximum period of detention under section 4 of the Criminal Justice Act 1984 from 12 to 24 hours. The Act also contains elements that will facilitate the prosecution of offences, for example, the new provisions on the admissibility of witness statements and the easing of the requirements on the Forensic Science Laboratory in connection with proving documentary evidence.
On the other hand, I would draw your attention to the extensive and ongoing programme of Garda reform. While I am satisfied that, for example, additional powers for the Gardaí are necessary and justified in current circumstances, I am equally convinced that there must be counter-balancing measures to provide safeguards against the possibility of an abuse of those powers. I have ensured that those safeguards were established before granting additional powers to An Garda Síochána.
The Garda Síochána Act 2005, with its provisions for an Ombudsman Commission and a Garda Inspectorate is a key element in the package of safeguards. As you will be aware, both the Garda Inspectorate and the Ombudsman Commission have been established and their impact will be profound. Over time, these bodies will bring a greater degree of transparency and accountability to Garda procedures and will provide independent assurance that best practice is being followed. It will also be the task of these bodies to deal openly with any shortcomings.
I regard the roll out of the arrangements for video recording of Garda interviews as another vital element in the package of safeguards. A video recording of an interview is indisputable when assurance is required that proper procedures were followed. We have now reached a point where facilities are available in every Garda Division and, at the next level down, they are available in the great majority, in about 90%, of Garda Districts. In 2005, the Gardaí estimate that over 98% of interviews were recorded.
These developments, as well as new promotion, discipline and whistleblower regulations, taken together with the very substantial investment in technology, equipment and general resources, not to mention personnel, will ensure a modern, well resourced and accountable police force capable of facing the future with confidence.
Turning to the Criminal Justice Act itself, it contains 197 sections, in 15 Parts, as well as four schedules. I will not be able, in the time available, to deal with all aspects of the Act - I propose instead to outline just some of the main provisions.
Investigation of offences
Part 2 contains several provisions concerning the investigation of offences. I want to mention four issues in particular. First, I draw your attention to section 5. It provides a new statutory power to preserve a crime scene. Section 6 provides a revised general provision on the issuing of search warrants where an arrestable offence has been committed or suspected. The extension of detention periods that I have already referred to arises in section 9. Section 14 deals with DNA sampling under the Criminal Justice (Forensic Evidence) Act 1990. As a result, mouth swabs and hair samples are no longer classified as intimate samples with the result that consent is not required. I should add at this point that, following the publication of a report by the Law Reform Commission last November, new legislation is being prepared in my Department on the establishment of a DNA database.
Admissibility of certain witness statements
In several criminal cases in recent years we have seen witnesses recant and refuse to stand over a previous statement. This has the potential to do serious damage to our criminal justice system. Part 3 of the Act seeks to deal with this situation by leaving it to the court in each case to determine whether a previous statement should be admitted; the Act provides guidance for the court in arriving at its decision.
Firearms
Parts 5 of the Act provides for significant amendments to the Firearms Acts 1925 - 2000. These changes are the most far reaching in this area for a very long time and include updating of the law in the areas of the licensing of firearms, increased penalties generally for firearms offences and mandatory minimum sentences of between 5 and 10 years for certain firearms offences. The new penalties include, for example, a maximum of life imprisonment and a mandatory minimum sentence of 10 years imprisonment for the possession of firearms with intent to endanger life and the use of a firearm to resist arrest or aid escape.
On the issue of mandatory minimum sentences, I believe that the provisions in relation to firearms and the identical provisions in Part 8 in relation to drug trafficking offences respect the constitutional imperative that judges have discretion to consider not only the offence but also the circumstances of the offender. The 2006 Act provides that where the court is satisfied that there are exceptional and specific circumstances relating to the offence or the offender, which would make the imposition of a sentence of not less than the mandatory minimum sentence provided for unjust in all the circumstances, the mandatory minimum sentence need not be applied. These circumstances include 'any matters' the court considers appropriate, including an early guilty plea and material assistance to the Garda investigation. However, the legislation is clear in stating this is to happen only where there are 'exceptional and specific' circumstances that would make a mandatory minimum sentence unjust and such discretion may only be exercised where a first offence is concerned and where it would not be against the public interest to do so.
In the case of second or subsequent firearms or drug trafficking offences carrying a mandatory minimum sentence, the Act provides that any person convicted of a second or subsequent such offence shall be sentenced to imprisonment for the mandatory minimum period prescribed. The Act also provides that where a person who is convicted of a first offence which carries a mandatory minimum sentence, and has also a previous conviction for another offence carrying a mandatory minimum sentence, such person shall be sentenced for the mandatory minimum period.
As a preparatory measure to the new sentencing regime for firearms offences, I introduced a firearms amnesty under the Act last September. While I did not believe that hardened criminals would surrender their arsenal of weapons, I wanted to give members of the public who wished to dispose of weapons an opportunity to do so before the introduction of the mandatory sentences. The amnesty, which resulted in 1002 weapons, including over 800 firearms, being handed in to the Gardai, was successful and fully achieved its objective.
Organised crime
Part 7 addresses the issue of organised crime which is an increasingly serious scourge both domestically and internationally. The Act's provision will enable Ireland to give effect to commitments arising from the UN Convention on Organised Crime, as well as in the EU's Joint Action on this same subject. It creates a number of offences relating to participation in or assisting in the carrying out of criminal activities by organised gangs. I have always acknowledged that it will be very difficult to successfully bring proceedings in relation to organised crime. However, that should not stop us from providing the law enforcement agencies with all the legal powers necessary to counteract these gangs. This State has battled successfully against organised crime of a subversive nature ever since its foundation and I hope and expect we will achieve the same success when it comes to tackling organised criminal gangs.
The new provisions are also important if we are to be in a position to assist internationally in the fight against organised crime.
Sentencing
In the area of sentencing, the Act introduces major reforms. It provides the courts with a range of additional sentencing options. I know we will be hearing from Prof O'Malley later on this topic.
The fundamental consideration behind the measures in the Act is that offenders in appropriate cases should be given incentives and opportunities to make a fresh start and to avoid custodial sentences. The Act does four things in the realm of sentencing policy. First, it puts the power to suspend all or part of a custodial sentence on a statutory basis for the first time. Second, the court is given powers to impose a fine but to defer the custodial part of the sentence, subject to conditions that may be specified by the court. This provision is particularly important in view of my earlier remark that offenders, where appropriate, should have an opportunity and an incentive to desist from criminal activity.
The third element of the package provides for 'restriction on movement orders' in the case of certain public order and some summary offences of assault - the offences are listed in Schedule 3 to the Act. These orders can be used as an alternative to a custodial sentence but, by virtue of the restrictions that can be imposed, an order can ensure that the desired result will be achieved while still permitting the offender to continue his normal activities in employment or education.
Finally, the Act provides a basis for the introduction of electronic monitoring of offenders who are the subject of restriction on movement orders or of prisoners who are on temporary release. While I have no plans to introduce electronic monitoring at this stage - I believe more preparatory work is required - I nevertheless felt I should take the opportunity presented by the new Act to introduce the necessary enabling provisions.
Anti-social behaviour
The Act addresses the serious problem of anti-social behaviour. Part 11 deals with such behaviour by adults while Part 13 deals with the arrangements for children between 12 and 18 years. The arrangements dealing with children are, in fact, a part of the Children Act 2001 and reflect the approaches employed under that Act, such as the Children Court and the very successful Diversion Programme.
All of us are aware of the increasing distress caused by anti-social behaviour. As a public representative I know it is a real source of anxiety and stress for many people, often elderly or vulnerable people. I was anxious to find a way to respond to this phenomenon but to do so in a way that was proportionate. I believe the Act achieves that balance. In drawing up my proposals I took account of the experience in the UK with what are termed ASBOs, in particular I was anxious to avoid some of the apparent excesses that one reads about.
The same definition of anti-social behaviour is used in both Parts. In both cases, the process begins with a warning to desist, issued by a Garda. That is followed, especially in the case of children, by a number of steps, before a court order is sought.
My intention is that the orders are a last resort. Every effort will therefore be made to divert the person from the offending behaviour. This is especially so in the case of children. I would also note that it is only a senior Garda who may apply for an order and it will be issued by a court only after a full hearing. No short cuts are taken.
Youth Justice Reforms - Amendment of Children Act 2001
Part 12 of the Act introduces amendments to the Children Act, 2001. The amendments have significant implications for the youth justice system in Ireland. The amendments are the result of a comprehensive review of the youth justice system undertaken by the youth justice task force. The report of the task force was published in December 2005 and resulted in a Government decision to introduce a series of youth justice reforms. These reforms involve a number of legislative and organisational changes including a decision to establish the Irish Youth Justice Service which is a dedicated executive office of the Department of Justice, Equality and Law Reform.
A number of significant changes arise from the amendments under Part 12, including the transfer of responsibility for reformatory schools and industrial schools, previously vested in the Minister for Education and Science, to the Minister for Justice, Equality and Law Reform. These schools will now be re-designated as detention schools and will be managed by the Irish Youth Justice Service.
Another key amendment relates to the age of criminal responsibility. The amendment provides that a child under the age of 12 shall not, in general, be charged with an offence with the exception of murder, manslaughter, rape or aggravated sexual assault. For these serious offences only, children aged 10 years and over can be charged. In addition, for children aged under 14 years of age, proceedings shall only be taken by or with the consent of the DPP.
The Youth Justice Service has responsibility for policy and for the various reforms of the youth justice system mentioned, particularly for implementation of the Children Act, as now amended by the Criminal Justice Act. The Youth Justice Service comes under the strategic direction of my colleague, the Minister for Children, Mr Brian Lenihan T.D. He also has responsibility in the Department of Health and Children for childcare issues. His unique position ensures that youth justice issues are addressed in a more coordinated way and within the wider context of children's issues generally. Overall, the amendments I have referred to, and others in the 2006 Act, will enable a more targeted response to youth offending and keep more children away from the criminal justice system, away from a prison environment and away from repeat offending. The intention is to try and break the cycle, something I know everyone has been keen to achieve for some time.
Before I leave this area, I want to mention Section 176. It gives effect to a conclusion in the report of the Ferns Inquiry that consideration should be given to the introduction of an offence of reckless endangerment of children. This important section places an onus on persons who have authority or control over a child or abuser not to recklessly or intentionally endanger a child by causing or permitting the child to be placed or left in a situation which creates a substantial risk to the child of serious harm or sexual abuse. The offence would also apply where the person fails to take reasonable steps to protect a child from such a risk while knowing that the child is in such a situation. This is a good example of how the criminal law can offer protection to children against abuse.
Codification
The Programme for Government includes a commitment to codify all substantive criminal law into a single Crimes Act, a highly complex and long term project. Part 14 of the Act provides a statutory basis for the appointment of a Criminal Law Codification Advisory Committee, the function of which will be to oversee the implementation of the codification project. I have already decided to appoint Professor Finbarr McAuley, Jean Monnet Professor of European Criminal Justice, U.C.D. as Chairman of the Advisory Committee and I am at present considering the names of other possible members. Work in relation to the commencement of the project is currently underway and I will be making an announcement in that regard shortly.
To conclude on this issue, I believe that the far reaching reforms contained in the Act, together with the other initiatives I have mentioned including those emanating from the Garda Síochána Act and the increased resources that I have made available to the Gardaí will assist not only in the fight against crime, but ensure we have a framework of law and enforcement that is well suited to a modern society.
However, we cannot stop there. Society is constantly changing and at an increasing rate. Just as society does not stand still, neither must the criminal law. I believe we must continuously monitor and review our laws and must not be afraid to question long established principles to see if they are continuing to serve us well. Such an idea is, of course, not new - the common law itself provides a good example of how the law evolves over time to respond to and reflect the social, moral and economic changes in society.
This audience will be aware that I have spoken recently of the challenge we face in ensuring current standards and practices remain suitable in the current environment. I believe this is a legitimate subject for discussion and review and, as I said at the outset, I see events such as today's as part of the ongoing dialogue. I have also mentioned that I have established a Review Group under the chairmanship of Dr Gerard Hogan to examine a number of specific issues under the general heading of 'the balance in the criminal law'.
I have requested the Review Group to examine long established rules around issues such as the right to silence, pre-trial hearings, allowing character evidence of an accused, re-opening new evidence, "with prejudice" appeals in the case of wrongful acquittal, modifying the rule in relation to hearsay evidence as well as allowing the prosecution to make submissions before sentencing. The Group may also examine any other proposals regarding criminal law, criminal evidence and criminal procedure that may come to its attention in the course of the review. I have asked the Group to report back to me by 1 March 2007. I understand that the Group has already started working and that it has invited submissions from members of the public and groups by 5 January 2007. This invitation represents an opportunity for a wider public engagement with the review process and I hope it will be availed of by all those wishing to make their views known.
Having raised the issues and having established the Review Group, I now await the Group's report. I'm sure it will contain many helpful and insightful suggestions. I would like to take this opportunity to record my gratitude to the Review Group's members, all of whom are busy people but who nevertheless are giving generously of their valuable time and considerable expertise.
Finally, may I once again express my appreciation to 'Thomson Round Hall' for organising today's Conference and wish all of you well in your discussions.
25 November 2006