The proposed changes are unlikely to be a panacea, writes Carol Coulter, Legal Affairs Correspondent.
The Criminal Justice Bill now before the Oireachtas is probably one of the most amended in the history of Irish legislation.
In the face of concern about antisocial behaviour from young people, a proposal to introduce anti-social behaviour orders (Asbos) was grafted on to it. Concerns over Halloween prompted a proposal to tackle the illegal use of fireworks. An escalation in gang-related killings gave rise to a raft of measures aimed at combating gang-related crime. These were all approved by the Cabinet yesterday.
Most appear to be driven more by pressure from the media and the opposition than from research into their efficacy and the real need for them.
The Minister for Justice himself has expressed doubts about the practicality of making it a criminal offence to be a member of a criminal gang.
This first surfaced two years ago, when he said he was proposing to introduce it into the Bill. Seven months later he told The Irish Times he was not proposing to include this measure, because there were difficulties with the legal definition of a gang. It re-emerged yesterday.
"How do you know a person is a member of a criminal gang?" asked Dr Ian O'Donnell of UCD's institute of criminology. "In the US it's easy, because they are usually race-based, there are rituals and initiation ceremonies, often including the committal of serious offences. There are tattoos and badges.
"Whoever gets the job of defining this in our legislation will have a hard time."
Such a measure is not even necessary, according to Prof Dermot Walsh of the University of Limerick. "There is always the existing option of the crime of secondary participation, defined as counselling, procuring, aiding or abetting in the commission of a crime. That is an established common-law offence which is punishable to the same extent as the actual crime."
The amendments include provisions to strengthen the existing sentencing provisions for drug-trafficking. There has been concern at the fact that the mandatory sentence of 10 years for the possession of drugs above a certain value is rarely used.
The mandatory sentence has been criticised by lawyers as inhibiting the discretion of the judiciary, who have used it to take into account previous convictions and the extent to which the accused has assisted gardaí with information.
There is also a major problem with deciding the value of a drug seizure and who decides it. Is it the market value on the streets on the day or some notional value?
Similar problems will arise with the proposed mandatory sentences for certain firearms offences, including five years for possession of a firearm in suspicious circumstances.
"Take these people who want to protect their land," said Prof Walsh. "If I'm walking around my land at 10 o'clock at night with a shotgun and my licence has run out, do I get the mandatory five years? This would be a totally disproportionate sentence for people not operating as members of gangs.
"Either judges will have to impose sentences that are inappropriate or they will have to make maximum use of any provision in the law 'except in exceptional circumstances'. Either will bring the law into disrepute."
A more fundamental issue is that laws introduced in the heat of hysteria about crime often do not live up to the expectations invested in them.
"Remember the bail referendum?" said Dr O'Donnell. "It had no bearing on anything. Before it even came into force crime had fallen anyway."
There appears to have been little consultation about these measures with those in a position to have a longer view on criminal justice matters. Under Section 8b of the Act setting up the Human Rights Commission, there is provision for the referral of proposed legislation to the commission for its consideration.
It is required to report back to the minister, who is expected to take its concerns into account before presenting the legislation.
The commission received the latest amendments at 5pm yesterday, after they had been agreed by the Government. Last year it expressed concern that it received the original draft of the Criminal Justice Bill only after it had been published.