JUSTICE BILL SALVO WIDE OF THE MARK

The new Criminal Justice Bill from the Minister of Justice is his first
salvo in the promised war on crime. Paul O'Mahony believes it is not
thought out

The new Criminal Justice Bill is the first salvo by the Minister for
Justice, Mr O'Donoghue, in his promised war against crime. Crime was
prioritised by all the political parties in the last general election and
Mr O'Donoghue's vague and overhyped notion of zero tolerance was,
arguably, Fianna Fails trump card, ensuring its narrow victory.

The last government oversaw the introduction of the Criminal Assets Bureau;
Operation Dochas; a very considerable expansion of prison places; the bail
amendment allowing for preventive detention; and sevenday detention for
suspected drug barons. It also made a commitment to both an independent
prisons board and an independent courts service.

However, for the first time in this State, significant progress was also
made by the Rainbow Coalition government in tackling the underlying causes
of crime. For example, the first drugfree prison regime was initiated,
local drug task forces were set up in deprived, druginfested areas and,
under the Rabbitte initiative, £34 million was committed for antidrugs and
youth development programmes.

These real achievements and this unprecedented level of general activity in
the criminal justice area were not acknowledged by Mr O'Donoghue, who
consistently characterised the Rainbow Coalition's anticrime measures as
"paralysis, resulting from a lack of awareness of the problem".

The public relations success of the zero tolerance notion in the election
campaign is illustrated by the fact that the then government parties hardly
mentioned their achievements, especially not their attempts to balance
being tough on crime with being tough on the causes of crime. They probably
feared that their efforts to achieve balanced policies would be electorally
damaging in an immature political climate intolerant of anything other than
overtly draconian approaches.

In this context, it is hardly surprising that the opposition spokespersons
on justice are now lining up to lambaste the Minister's Criminal Justice
Bill. There is clearly a deep desire to inflict on Mr O'Donoghue some of
his own potent medicine. This desire is increased by the fact that the
crime issue has almost faded from view in the media since the election and
by the perception that the Minister for Justice has been given a very soft
ride in his first few months.

However, the Minister may learn how quickly this can all change with the
outraged reaction to the current lawenforcement crisis, involving the
arrest and release of members of an alleged cannabis importing gang. This
trumpeted Garda triumph may well turn to ashes and already has echoes of
the Judge Lynch delisting debacle that almost cost his predecessor, Mrs
Nora Owen, her job.

Mr Jim Higgins, of Fine Gael, has described the Bill as a "damp squib and a
flawed one at that" and Ms Liz McManus, of Democratic Left, has said the
Bill "demonstrates that the Minister's pronouncements on zero tolerance
were little more than preelection macho posturing".

These criticisms are welldeserved, for there can be little doubt that the
new Bill is no more than a token gesture towards the fullblown notion of
zero tolerance which Mr O'Donoghue so effectively exploited to discomfort
the former government. As a means of ushering in an era of zero tolerance,
whatever that might mean, the Bill is less than impressive.

Most people will agree that a minimum sentence of 10 years for trafficking
in substantial amounts of drugs is quite appropriate. But there are aspects
of the Bill which are quite radical and momentous in their implications.

The Criminal Justice Bill has two main goals. The first is to ensure that
custodial sanctions for serious drugtrafficking are set and maintained at
a high level. This may well be needed to undergird the deterrent value of
sentences, especially in a "revolving door" penal system.

The Bill proposes to disbar drugs traffickers from benefiting from the
early release mechanism. The provision in the Bill for the automatic
pursuit of the criminal assets of convicted traffickers appears eminently
sensible.

But there are obvious problems with this type of allornothing
legislation. The cutoff point at which a minimum 10 years becomes
mandatory is when the drugs have a value of £10,000. The valuation is to be
decided by the Garda. The street value of drugs is a volatile economic
variable which can depend on the success and scale of seizures by gardai.

The Bill can also be criticised because there are no distinctions made
between soft drugs and hard drugs, like heroin, which are far more
detrimental in their effects.

But there are other problems and consequences with this kind of rigid,
punitive approach. For example, it is likely that the real bosses behind
the drugs trade will take effective measures to distance themselves from
the handling of the product, exploiting addicts for this work.

But the most radical aspect of the Bill is the move towards restricting
judges in their discretion to choose the most appropriate sentence for an
individual case. This breaks new ground and does so in a precipitate manner
in the total absence of debate about the issue and of empirical evidence on
sentencing.

It is especially regrettable that the public has not been afforded an
opportunity to hear the views of judges. The vacuum of information and
analysis on the vital function of sentencing is highly detrimental to the
system and surely should be addressed before embarking on fundamental
changes affecting judicial discretion.

The second main goal is to streamline and speed up criminal justice
procedures. This aspect of the Bill is likely to be popular and has raised
little comment because it is perceived as addressing an area in urgent need
of attention. It is widely believed that parts of current criminal justice
procedure are unwieldy and not appropriate to modern circumstances, as well
as being weighted in favour of defendants.

The Bill has addressed this area by proposing the abolition of the
preliminary hearing and by freeing gardai from the necessity to attend
court in person in certain circumstances. While it is right to eliminate
unnecessary, timewasting procedures, the issue of the preliminary hearing
goes to the heart of justice and of the due process nature of our system.

The preliminary hearing has always been thought essential in order for the
defendant to gain timely access to the facts of the case against him or her
and in order that a judge is empowered to throw out manifestly weak cases.

The new Bill safeguards the rights of the accused relating to access to
evidence, but the abolition of the preliminary hearing is nevertheless
another attack on the traditional legal protections for suspects and
defendants and also, like mandatory minimum sentences, on the discretionary
powers of judges.

It is particularly worrying because it extends the antidefendant agenda to
all defendants, rather than just drugs barons, and because no systematic
monitoring of the effects of the changes is proposed.