Criminal Justice (Burglary of Dwellings) Bill 2015
Second Stage (Seanad) Speech by
Minister of State Aodhán Ó Ríordáin
on behalf of Frances Fitzgerald TD, Minister for Justice and Equality
11 December 2015
I am pleased to present the Criminal Justice (Burglary of Dwellings) Bill 2015 to this House on behalf of the Minister for Justice and Equality. Minister Fitzgerald is unavoidably detained on other important business.
This Bill aims to tackle persistent offenders charged with multiple offences of burglary of homes. It will enhance the provisions for refusal of bail in appropriate cases and provide for consecutive sentencing for repeat offenders.
Burglary
Burglary is a very invasive, upsetting crime which is not simply about theft or property. When it occurs in the home it strikes at our very peace of mind in the one place where we should feel most secure.
Article 40.5 of the Constitution highlights the importance of the home: it states–
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
The courts have long recognised that burglary of a person’s home is an egregious crime. In his judgment in the 2006 case of DPP v. Barnes, Mr Justice Hardiman stated that:
“The offence of burglary committed in a dwellinghouse is in every instance an act of aggression, an attack on the personal rights of the citizen as well as a public crime and is a violation of him or her.”
Review of Response to Burglary
Because of her concern about a rise in domestic burglaries, the Minister initiated a review of the criminal justice system’s response to the problem. The review looked at legislation, the management of prolific offenders, policing and crime prevention and involved the Garda Commissioner, the Probation Service and the Irish Prison Service.
Minister Fitzgerald has been consistent in her view that serious offenders and serial offenders must continue to be imprisoned in appropriate cases. Public safety is of paramount importance. But it is equally clear that imprisonment is only part of the solution. Locking people up and forgetting about them is not an effective way to reduce re-offending or protect our communities and reduce victimisation.
Repeat Offenders and JARC
The review highlighted the fact that a large proportion of domestic burglaries are committed by serial offenders. Senators will, no doubt, be aware that approximately 25% of offenders are responsible for 75% of property offences. There is also evidence of a high rate of recidivism for burglary. Data from the 2013 Irish Prison Service Recidivism Study shows a recidivism rate of over 79% among persons imprisoned for burglary and related offences. Data from the 2008 – 2013 Probation Service Recidivism Study shows a recidivism rate of 49% among persons engaging with the Probation Service for burglary and related offences. These recidivism rates are the highest rate for any offence group.
Offenders pass through the hands of the Gardaí, the Courts, the Irish Prison Service and the Probation Service. The criminal justice system can not be effective if it is disjointed. The Minister wants to ensure that it handles offenders in a coordinated way from beginning to end. Last week the Minister launched the Joint Agency Response to Crime initiative. JARC is an inter-agency response to the management and rehabilitation of offenders. It involves the Probation Service, Irish Prison Service, and the Garda Síochána working in collaboration with statutory, community and voluntary partners. The JARC strategy is to target those recidivist offenders who are responsible for the majority of crime. In order to reduce crime and enhance public safety, the nominated prolific offenders will be managed through the co-ordination and integration of policy, practice and research between the organisations. It makes sense that by targeting identified prolific offenders with cross cutting initiatives like this one, that address their criminal behaviour and the harm it does, crime will be reduced and public safety increased. These people require a specific programme in the community if they are to make better choices.
In this context, targeting the relatively small group of repeat burglars has the potential to significantly reduce the incidence of burglary and the harm it causes across the country.
Bill Addresses Identified Legislative Problems
In addition to a more co-ordinated approach to offender management, the review I referred to identified two key problems which can be tackled by legislation. One relates to repeat offenders who are granted bail despite being charged with multiple burglaries and who often commit further burglaries while on bail. The other relates to the fact that relatively short sentences can be imposed by the courts when multiple burglary offences are taken into account. This Bill will address those problems.
Garda Response – Operation Thor
Of course, before one can prosecute or manage offenders, one has to respond to burglaries and investigate them. Tackling crime and burglaries remains a top priority for the Government and for An Garda Síochána. Operation Thor, a new multi-strand, national, anti-crime and anti-burglary operation was recently launched by the Garda Commissioner. An extra allocation of over €5 million has been committed by the Government to support Operation Thor, which entails a broad range of activities to tackle crime, particularly burglaries, in both urban and rural communities nationwide.
These include additional high-visibility patrols in identified burglary hot-spots, increased use of checkpoints to tackle the criminal gangs using the national road network, the use of new high powered vehicles by the armed Regional Response Units, efforts to disrupt the stolen goods market, programmes to help reduce re-offending by prolific offenders, a high-profile national crime prevention awareness campaign, targeted crime prevention advice for local communities and enhanced supports for victims.
Since Operation Thor commenced last month, there have been a range of arrests and persons charged as part of planned operations under Thor. These include arrests in Dublin, Dundalk, Cavan, Dunboyne, Mullingar and Birr, as well as a large scale search of 12 locations in the Limerick area as part of a targeted operation against organised crime groups, in which drugs and firearms were also seized. The Minister expects to receive ongoing reports on the impact of the Operation throughout the country.
Special targeted patrols have been implemented with the assistance of Garda National Support Services against criminal groups. These arrangements have also targeted the use of motorways by criminal gangs and have contributed to the arrest of a number of high-priority suspects.
It is also important to note that the sustained Garda response under the previous Operation Fiacla has produced many successes in disrupting those involved in this type of criminal activity. As of 31 August 2015, Operation Fiacla had led to 14,381 arrests, with 8,181 persons charged.
Garda Resources
The everyday tasks of the Garda Síochána and the specialist operations all have to be resourced, of course. This Government has prioritised investment in the Gardaí and all aspects of their work. Over €34 million has been invested in new Garda vehicles since 2012 with over 640 new vehicles coming on stream in 2015, ranging from more Garda patrol cars to high-powered vehicles for armed units. The Government's Capital Plan 2016-2021 provides for a further €46 million of investment in vehicles as well as the recently authorised allocation of €1.8 million for the replacement and upgrade of equipment on the Garda fixed wing aircraft.
The Capital Plan contains an additional €205 million for Garda ICT systems and technology. This will bring the overall Garda ICT funding to €330 million over the lifetime of the capital plan.
A few weeks ago, together with Simon Harris, Minister of State at the Office of Public Works, Minister Fitzgerald announced details of the Garda Building and Refurbishment Programme which includes over €60 million of Exchequer funding as part of the Government Capital Plan 2016 – 2021 as well as a major Public Private Partnership project.
Just last month the Minister commenced the DNA legislation that saw the launch of a new state-of-the-art DNA Database System, based in Forensic Science Ireland in the Phoenix Park. The DNA database represents a hugely significant development in assisting the Garda Síochána in the investigation of crime. This high quality intelligence and investigation tool will be invaluable in the fight against a whole range of crimes including burglary.
Recognising Garda Service
Of course, the most important resources the Commissioner has at her disposal are the members of the force themselves. I want to commend them for their brave, compassionate, and dedicated service; none more so than Garda Tony Golden who went far beyond the call of duty and gave his life to protect a vulnerable victim of domestic violence. He along with the 87 other members of the force who have given their lives in the line of duty did so out of a sense of service, a vocation to care for and protect their fellow citizens. There are no words of sorrow or gratitude equal to that service and that sacrifice.
Garda Recruitment
We can, as legislators and Government, show our support for the members of the Garda Síochána in a practical way by giving them the resources they need to do their work. I have spoken already of the investment in vehicles, equipment, buildings and technology being made by the Government. This Bill we are debating today will be a valuable legislative tool for Gardaí in their work to tackle burglary. We also need to address Garda numbers. The Garda College in Templemore was reopened to new recruits in September 2014. Since then, six intakes of new Garda trainees have entered the Garda College, giving a total intake of 550 recruits. Of these, 295 have already attested and are now working in communities nationwide
Minister Fitzgerald recently announced the opening of a recruitment campaign for new members of An Garda Síochána in 2016. This new campaign underscores the Government’s commitment to seamless ongoing recruitment to An Garda Síochána to ensure that the Service is renewed and has the capacity to deliver an effective, responsive police service throughout the country to protect our communities and respond to emerging crime trends.
This additional recruitment will bring to 1150 the total number of Garda trainees recruited under this Government between September 2014 and 2016.
I should mention that the 2016 campaign will include a special stream for eligible members of the Garda Reserve who give their time on a voluntary basis to support the work of An Garda Síochána.
Community Approach
Community based organisations such as the Irish Farmers Association, Neighbourhood Watch and Muintir na Tíre are key partners of An Garda Síochána in the fight against rural crime. Part of Operation Thor is to raise awareness in the community as to how they can work together to prevent crime. The funding being provided to support Community Alert and Crimestoppers is being doubled with a total allocation of €397,000 in 2016.
Provisions of Bill
I will now outline the provisions of the Bill.
Bail in burglary cases
Section 1 of the Bill seeks to ensure that prolific burglars can be refused bail in appropriate cases.
It is necessary to recall that a decision to grant bail in a particular case is a matter for the court, which is, subject only to the Constitution and the law, independent in the exercise of its judicial functions. There is a constitutional presumption in favour of bail because in the eyes of the law, a person is innocent until proven guilty.
Section 2 of the Bail Act 1997, which gave effect to the Sixteenth Amendment of the Constitution, permits the courts to refuse bail to a person charged with a serious offence where refusal of bail is reasonably considered necessary to prevent the commission of a serious offence by that person. Burglary offences are designated as serious offences for the purposes of the Bail Act.
However, it is clear that prolific burglars with numerous previous convictions are repeatedly granted bail, despite Garda objections, even when charged with a series of burglaries.
Section 1 of the Bill will add new provisions to section 2 of the Bail Act 1997.
The new provisions will apply where a court is considering a bail application from an adult charged with a “relevant offence” alleged to have been committed in a dwelling. A “relevant offence” is defined as a burglary or aggravated burglary offence contrary to section 12 or 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 respectively.
For the purposes of bail applications in such cases, the court must consider previous convictions for domestic burglary coupled with pending charges or recent convictions as evidence that the accused person is likely to commit a further domestic burglary.
Turning to the detail of the provisions, the new subsection (2A) applies where a court is deciding whether it is reasonably considered necessary to refuse bail to prevent the commission of a serious offence by a person who is charged with a burglary alleged to have been committed in a dwelling.
In such a case, if certain circumstances exist, as set out in subsection (2B), the court must consider the existence of those circumstances as evidence that the person is likely to commit a further domestic burglary.
These circumstances are that the person has a previous conviction for domestic burglary committed in the 5 years before the bail application and that:
(i) the person has been convicted of at least 2 domestic burglaries committed in the period starting 6 months before and ending 6 months after the alleged commission of the offence for which he or she is seeking bail, or
(ii) the person has been charged with at least 2 domestic burglaries allegedly committed in the same period, or
(iii) the person has been convicted of at least one domestic burglary committed, and charged with at least one other domestic burglary allegedly committed, in the same period.
The provisions, while making it clear that prolific burglars should be refused bail in the circumstances set out in the Bill, will leave the courts all necessary discretion to vindicate the constitutional rights of an accused person in relation to bail.
The new subsection (2C) provides that a reference in subsection (2B) to a conviction for a relevant offence includes a conviction that is currently under appeal.
The new subsection (2D) provides that subsection (2B) will not prejudice the operation of section 258 of the Children Act 2001, which provides for the non-disclosure of certain findings of guilt relating to offences committed by persons under the age of 18.
A new subsection (4) will be inserted into section 2 of the Bail Act to define “dwelling” and “relevant offence” for the purposes of the new provisions.
Consecutive Sentences for Burglary
Section 2 of the Bill seeks to deal with the related problem of concurrent sentences being handed down for multiple burglaries. In many cases, relatively short sentences are imposed when multiple burglary offences are taken into account by the court.
Section 2 will insert a new section 54A into the Criminal Justice (Theft and Fraud Offences) Act 2001. The new section will require a court which decides to impose custodial sentences for multiple domestic burglary offences committed within a 12 month window, to impose such sentences consecutively.
The new section applies only to a “relevant offence”, which means a burglary or aggravated burglary. The provisions will apply only to adults previously convicted of a domestic burglary committed in the five years before the burglary offence for they are being sentenced.
Subsection (1) of the new section 54A will apply where an adult:
(a) is being sentenced to imprisonment for a domestic burglary,
(b) was convicted of another domestic burglary committed in the 5 years before the offence for which he or she is currently being sentenced, and
(c) was sentenced to imprisonment for another domestic burglary committed in the period starting 6 months before and ending 6 months after the burglary offence for which he or she is now being sentenced.
In such a case, any sentence of imprisonment which the court chooses to impose for the burglary for which the person is currently being sentenced must be consecutive to any sentence of imprisonment imposed for the prior domestic burglary offences.
Subsection (2) makes it clear that where a prior burglary offence would come within paragraphs (b) and (c) of subsection (1), that offence may be considered for the purpose of satisfying either paragraph (b) or (c) but not both.
Subsection (3) provides that subsection (1) will apply only where the burglary offence for which the person is being sentenced was committed after the Bill comes into operation, and will apply whether the other offences were committed before or after that date.
Subsection (4) provides that the aggregate term of imprisonment for consecutive sentences imposed by the District Court under the new provisions can extend to but not exceed 2 years. No such restriction will apply to the Circuit Court.
Subsection (5) provides that a reference in subsection (1) to a conviction for a relevant offence includes a conviction that is currently under appeal.
Subsection (6) defines “dwelling” and “relevant offence” for the purposes of the new section.
The discretion of a court whether or not to impose a custodial sentence will not be restricted by the new provisions.
Finally, section 3 is a standard provision providing for the short title and commencement of the Bill.
This Bill targets repeat burglary offenders through bail measures and provisions concerning the imposition of consecutive sentencing for repeat offending. It is one part of a broader co-ordinated strategy to tackle burglary and other crime through investment in Garda resources, increased recruitment, specialist operations like Thor, coordinated offender management though JARC, the Joint Agency Response to Crime, investment in community initiatives like text alert and investment in crime-fighting technology including the DNA database. The key objective of this legislation is to target a cohort of persistent offenders who prey on law-abiding householders and clearly have no concern for the damage and distress which they inflict on other people.
I commend the Bill to the House.