More laws, less rights: the new Criminal Justice Bill

Micheal McDowell is pushing through an amended Criminal Justice Bill with no details of what the amendments are, despite warnings from civil rights groups. Is whittling away our rights legitimately protecting Irish citizens or pushing us closer to a police state? Hilary Curley reports

The new Criminal Justice Bill increases the power of the Garda but leaves the system open to abuse because safeguards have not being built in, said Irish human rights organisations during the week. Criticism has also being levelled at the Minister for introducing 11 amendments to the Bill with no detail on what they entail and the organisations have called for the Bill to be withdrawn.

"The Criminal Justice Bill as it stands is bad legislation, it is incomplete and substantial amendments have been added with no detail available. It needs to be withdrawn and re-written to include all the amendments and take on board the advice of the Human Rights Commission," said Aisling Reidy from the Irish Council for Civil Liberties.

The Government has failed to demonstrate a need for the changes published in the Bill, said the Human Rights Commission and has effectively ignored their input into the process. There are five areas of the Bill that are causing concern.

1Search warrants The Bill allows for a warrant to be issued by another garda who holds the rank of superintendent. But the judicial control of the search warrant process is an essential feature in protecting against abuse, the human rights organisations say, and the right of the individual to his or her private life is enshrined in human rights legislation.

2Increased powers of detention Increased powers of detention mean that an individual can now be held for 24 hours for all arrestable offences as opposed to a previous detention period of 12 hours. It is argued that the change is excessive. Increased detention should only be allowed when it has been authorised by judicial authority, where the interview is video-taped or where the offence is serious in nature. A lawyer should also be present when the suspect is being questioned.

3Reclassification of saliva This authorises the Garda to take DNA samples without consent. It is the "without consent" element that is causing the controversy. Human rights organisations say that there is a strong possibility that gardaí may resort to unnecessary force in circumstances where people in custody refuse to provide DNA samples. A number of safeguards are needed: the individuals solicitor should be present; the process should be video-taped and the police should be trained in the procedure.

4Admissibility of statements Where a witness refuses to give evidence to a trail, denies making a statement to the guards or gives inconsistent evidence previous statements that he or she has made in the court. Admitting out-of-court statements could undermine the right of the defence to effectively hear and cross-examine the evidence against him or her. The current procedures in place should be used more vigorously before this change is introduced. All witness statements should be recorded and unless that is the case they should not be admitted as evidence.

5Public order fines Finally, the Garda will be able to issue an on-the-spot fine for a public order offence. Human rights organisations are looking for this section of the Bill to be deleted because there is no clear definition of a public order offence, and it allows the guards to be judge and jury. It may also lead to the criminalisation of homeless persons.

The eleven amendments that were introduced at the second stage of the bill on 15 February include electronic tagging, a drug offenders register and provisions to deal with anti-social behaviour. It was the latter that occupied most of the attention of the Oireachtas committee on human rights during the committee meeting on 23 February.

The Irish Youth Justice Alliance claimed that children from as young as ten may end up serving five years in prison if new Anti-Social Behaviour Orders are introduced. An Anti-Social Behaviour Order (ASBO) is made by the court to protect the public and can be issued to children (over the age of ten) and adults alike. Anti-social behaviour is defined as "behaviour which causes harassment, alarm and distress". While an ASBO is issued as a civil order, it is a criminal offence if it is breached with a maximum penalty of five years' imprisonment.

Even though the Department is light on detail on this particular amendment, a speech given by Michael McDowell, Minister for Justice on 7 February to Dublin City Council, gave a clear indication that these orders were on their way:

"I am considering providing for the introduction of Anti-Social Behaviour Orders. This would mean that the Gardaí would be able to apply to the courts by way of civil procedure for an Anti-Social Behaviour Order which would prohibit persons from behaving in the offending way. Although the order would be a civil order, breach of the order would be a criminal offence punishable by a fine or imprisonment or both," he said.

"It directly contravenes the 2001 Childrens Act which is all about diverting young people and young offenders away from the criminal justice system," said Maria Corbett from the Irish Youth Justice Alliance. "Large sections of the Childrens' Act have yet to be implemented by the Government and if this was done, there would be no need for these anti-social behaviour orders".

Controversy has dogged ABSOs since they were introduced in England and Wales in 1999 and subsequently to Scotland and Northern Ireland. Their experience shows that breaches of the civil order occur in about one third of the cases, and half of these end up in custody. While ASBOs apply to both adults and children, the evidence suggests over half the orders are given to children under the age of 18.

"What is termed as anti-social behaviour is subjective and this lack of definition is the main problem with ASBOs. The definition doesn't tell a young person what they are not allowed to do. They don't even know they are committing an offence", said Ursula Kilkelly, a law lecturer in UCC who has done extensive work on the juvenile justice system.