Mick Wallace (Wexford, Independent) | Oireachtas source

I move:

In page 3, to delete lines 24 to 29, to delete pages 4 to 6, and in page 7, to delete lines 1 to 9.

The Criminal Law (Sexual Offences) (Amendment) Bill 2018 is an example of a broken legislative system and something about which we as legislators should be extremely concerned. This is the second time flawed legislation proposed by an Independent Alliance Deputy has been allowed progress through the Department of Justice and Equality. I hardly need to remind everyone of the disaster to which the Judicial Appointments Bill amounts. It appears that Fine Gael, historically the party of law and order, is prepared to allow its coalition partners propose flawed legislation in order to maintain their support.

The main goal of the Bill is to seek to impose presumptive minimum sentences for sexual offenders who have been convicted of sex offences and received a sentence of at least five years and who go on to commit another sexual offence within a further ten years. The Bill appears to have been proposed based on the concerns of a few particular constituents of Minister of State, and this amendment, which proposes to remove sections 4 and 5, will render the main goal of the Bill null and void. In fact, the Minister of State admitted that the genesis of the Bill came from his constituents, when he told the justice committee: "I have met victims and the purpose of bringing forward this legislation is based on the evidence put in front of me by these people". This is not the way legislation should be drafted, namely, to appease the concerns of constituents. I am not saying these constituents did not have valid concerns and while we should listen to our constituents, drafting primary legislation on the basis of concerns alone is not the answer. Legislation should be based on multiple issues, namely, empirical evidence and discussions with stakeholders, in this case, the courts, the Prison Service, victims, families of victims, offenders, counsellors, experts, etc.

I wish to discuss some of the reasons we are proposing this amendment. Section 4 appears to be based on two falsehoods. The first is that there is a high rate of recidivism by sexual offenders. In 2013, the Irish Prison Service conducted a study on recidivism which found that the offence groups with the lowest rates of reoffending were homicide at 26.2%, followed by sexual offences at 28.2%. While it is obvious that the rate of reoffending would be low in the cases of homicide, the reoffending rate for a sexual offender is also low compared with a crime like burglary where the reoffending rate stands at 79.5%. Has the Department of Justice and Equality in drafting this Bill conducted any up to date studies on the recidivism rates of sexual offenders?

The second basis for section 4 is that incarceration stops sexual offenders reoffending, with which we disagree. A US study from 2007 of 627 sexual offenders found that there was no evidence that the relationship between incarceration and recidivism was confounded or moderated by risk or the length of incarceration and that sentencing sexual offenders to terms of incarceration appears to have little, if any, impact on sexual and violent recidivism following release. Has the Department of Justice and Equality conducted similar studies on sexual offenders in Ireland? I am not sure if it has, but similar to the recidivism rate of sexual offenders, it is worrying that it appears that the Department has not done any analysis on this.

As mad as this sounds, section 4 will probably never be applied in the way the Minister hopes, as it gives the Judiciary a get-out clause, which I can only assume has been inserted at the behest of the somebody in the Attorney General's office, as they probably share the same concerns we have voiced. The get-out clause states: "Subsection (1) shall not apply where the court is satisfied that it would be disproportionate in all the circumstances of the case to specify as the minimum term of imprisonment to be served by the person concerned the term of imprisonment referred to in that subsection in respect of the subsequent offence." An identical get-out clause was included in section 5 of the Criminal Justice Act 1999 which sought to impose a mandatory ten-year sentence on anybody found guilty of possession of drugs valued above €13,000. The first thing the Judiciary did when sentencing under this Act was to go straight to the subsection which allowed it to use its discretion, and this has resulted in less than 10% of the convictions under this legislation amounting to the full ten-year sentence.

Instead of this Bill, we believe the Government would be better placed proposing legislation that makes it mandatory for sexual offenders to do therapy while in prison. Currently, there is a programme called Building Better Lives, however, although it is made available to all sex offenders in Ireland, it is voluntary, and it requires participants to admit the offence they caused and the harm done to victims before they can take part. Figures obtained by RTÉ’s John Burke before Christmas showed that the number of sex offenders who are being released from prison without having undergone the programme has increased. Out of 135 sex offenders who will be released this year, as few as 17 have taken part in the Building Better Lives programme. There are approximately 450 sex offenders currently in Irish prisons at any one time, yet it appears that the numbers taking part in the Building Better Lives programme are dropping year on year. In a reply to a parliamentary question in 2015, the former Minister, Deputy Frances Fitzgerald, told the House that 136 sexual offenders were released from custody in 2014, and 29 participated in the Building Better Lives programme. There has been a decrease in the number of participants since then. This drop is worrying, particularly as the figures show that those who complete the Building Better Lives programme are less likely to re-offend. The head of the Irish Prison Service psychology service, Dr. Emma Black, told RTÉ that the recidivism rate for those treated under the Building Better Lives programme was much lower than those untreated. She said: "The recidivism rate for people who have undergone the treatment, over 15 years, is about 5.4%, compared with those untreated at about 19.6%.”

That is an amazing statistic and it raises the question as to why the Department does not consider making the Building Better Lives programme mandatory. The Minister, Deputy Flanagan, is on the record as saying that he is very keen to work closely with the Irish Prison Service on the issue. I understand that certain offenders refuse to admit their crimes. However, Dr. Black stated that the Irish Prison Service was now considering introducing a specialised treatment programme aimed specifically at so-called "categorical deniers" who refused to admit the sexual abuse they engaged in, or that it was harmful to their victims, and a business case has been put to the Department of Justice and Equality for additional resources on this issue.

If the Minister, Deputy Flanagan, and his Department want to properly address the issues surrounding sexual offences and recidivism, they should withdraw this Bill, and instead examine making programmes like the Building Better Lives mandatory for sexual offenders. As we know from the US study, incarceration alone does not stop recidivism.

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