Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Bill has two functions, first, to create a comprehensive register of sentences; and, second, to introduce greater transparency to the sentencing process within the criminal justice system. I certainly agree that these are worthy objectives. The Bill details the information that would be required in the register, which would be subject to the Freedom of Information Acts. It also provides that certain designated persons and organisations would have access, by right, to the register. The courts service would be obliged to maintain the register.

I note Deputy Jim O'Keeffe introduced the Bill on the basis that the identity of the offender would be concealed in this particular exercise. I agree with him that there is a need for more data on sentencing, both for use by the Judiciary themselves, as he advocated, and for the purposes of public oversight. The Minister is not convinced that a register, as proposed on these lines, is the way to do it. The courts service has advised the Minister that a proposal on the lines suggested by the Deputy would present significant logistical and resource problems.

The information required under this Bill would be extremely difficult for the courts service to collate and maintain. It would be a huge undertaking for the Courts Service to collect this level of detail and a vast drain on staff resources, while other elements of the register are simply not within the remit of the Courts Service.

The register envisaged by the Bill would require details of each and every sentence. This would include cases which had been held in camera, the details of which cannot be made public by law. In practical terms, this means that details of almost all criminal cases would have to be maintained, including details which the Courts Service does not have. For example, the mitigating factors taken into consideration in determining sentence are not available, other than from a recorded transcript of the proceedings. Such records of transcripts are only prepared in the event of an appeal to the Court of Criminal Appeal. There is no transcript of District Court proceedings so the requirement suggested in the legislation that the mitigating factors should be part of the public record would be impossible to implement. This level of detail would mean a huge increase in the amount of manual compilation of information. The criminal case tracking system maintained by the District Court does not contain anything like this amount of detail.

The Courts Service does record the outcome of each case brought before the courts. The service does not record the reasons for the sentence because it very seldom knows them. It does not record any background details, such as mitigating factors taken into consideration or the person's previous convictions. These may form part of the defence presented in court and may or may not be factors taken into account by the judge in determining sentence.

The accused or, indeed, counsel on his or her behalf might raise a myriad of groundless arguments in mitigation. To keep a record of all such information would be a fruitless exercise at the expense of the public purse. Other details suggested in the register, such as how much time had already been served by the accused, the length of time served by the accused, the executed elements of any non-custodial elements of the sentence, the granting of early release and the remitted portion of a sentence, are not available to the Courts Service. This information is available to other agencies such as the Prison Service and the Garda Síochána.

Turning to the sections proposed, section 4 provides that the register shall hold certain information pertaining to each and every sentence handed down in Ireland. It is simply not practical nor feasible to record all the details set out in the Bill. Section 4(2)(d), dealing with recording any mitigating factors, goes too far in suggesting that the sentencing judge may not take any mitigating factors into account in imposing sentence. Section 4(2)(g)(iii) deals with the amount of time served. Time served is usually taken into account but warrants only specify date from which sentence is to run. Section 4(2)(g)(iv) deals with the length of time served. This information is not necessarily known to the court as the accused may have been on bail for all or part of the remand period. Section 4(2)(g)(vi) deals with whether early release was granted. This information would not be known to the Courts Service. Section 5(1) states that maintenance of the register shall be the responsibility of the service but the Minister is advised that it would be more practicable to keep a separate register in each court. Section 6(2) states that the register shall be publicly available. However, if the register is to be publicly available, section 6(2), outlining what class of persons would have a statutory right of access to the register, would appear to be redundant.

I appreciate that Deputy Jim O'Keeffe may maintain that these are essentially Committee Stage points but so many debilities are identified in the Bill that surely they invalidate the purpose of giving it a second reading.

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