Alan Shatter (Dublin South, Fine Gael)

I move: "That the Bill be now read a Second Time."

I am pleased to present this Bill to the House, which is designed to encourage the greater use of community service as an alternative sanction to imprisonment. The first Bill I ever published as a Deputy was the Community Service Bill 1982, the first legislation published in the State to facilitate the courts making community service orders. It is particularly appropriate that the first Bill I am introducing to the House as the Minister for Justice and Equality is legislation to amend our law on community service orders.

The 2011 Bill reflects the commitment set out in the national recovery plan to extend the use of community service orders by introducing a requirement on judges when considering the imposition of a sentence of 12 months or less to consider the alternative sanction of community service first. This is a commitment in the programme for Government as published. Imprisonment - the deprivation of a person's liberty - is the most serious sanction available to the State in punishing a person convicted of a criminal offence. It is rightly regarded as a sentence of last resort.

In the area of penal policy, non-custodial or alternative sanctions are an essential part of the sentencing options available to a court when imposing a sanction on a convicted offender. Many minor offences, while carrying potential sentences of imprisonment, may not warrant a sentence of custody. This is where non-custodial sentencing options form an essential part of the judicial discretion in sentencing. The most common non-custodial sanction used by the courts is the imposition of a fine. Other alternative sanctions include suspended sentences, application of the Probation of Offenders Act, the imposition of a restriction on movement order or the imposition of a community service order. Today we focus on community service orders and encourage their use as an alternative sanction to terms of imprisonment of up to one year.

It was last July when I, as Fine Gael justice spokesperson, first proposed that a greater obligation should be imposed on the courts to make provision for community service orders. In circumstances in which the courts were considering imposing a sentence of 12 months or less in respect of an offence, I suggested that legislation be introduced by the then Government to impose an obligation on the Judiciary to consider automatically community service as an alternative. Some weeks later, the then Minister for Justice and Law Reform, Mr. Dermot Ahern, indicated that the Government would introduce legislation, but it would confine the obligation on the Judiciary in circumstances where sentences of six months or less were being considered. The 2011 Bill is in line with the original proposal made last summer and in accordance with the programme for Government.

Before addressing the Bill in detail, I will set out some background to community service. As an alternative sanction to imprisonment, community service was first introduced under the Criminal Justice (Community Service) Act 1983, the provisions of which reflected those contained in the 1982 Bill. Under that Act, a court may make a community service order in respect of an offender who is over the age of 16 years and has been convicted of a criminal offence for which a sentence of imprisonment would be appropriate. A community service order requires an offender to perform unpaid work for between 40 and 240 hours.

A number of conditions must be met before making an order. A court may not apply a community service order unless satisfied, on the basis of an assessment report of a probation officer, that the offender is a suitable person for the purpose of such an order, appropriate work is available and the offender has consented to the order.

Increasing the use of the community service scheme was one of the main recommendations of the value for money and policy review of the scheme that was published in October 2009. As noted by the review, community service as an alternative sanction to custody achieves several goals benefiting the State, the community and the individual offender. Community service delivers significant financial savings, as it is a considerably cheaper sanction than imprisonment. An analysis of the costs involved indicate that the comparative cost of a community service order is unlikely to exceed 34% of the alternative cost of imprisonment and may be estimated to be as low as 11%-12%. Community service benefits the offenders by diverting them from prison, allowing them to maintain ties with family, friends and community, including continuing in education or employment as the case may be. Community service also offers reparation to the community, which benefits from the unpaid work of those serving these orders.

In this regard, it is worth remarking on some of the projects undertaken in communities throughout the country. In 2009, the community service graffiti removal project was piloted in south County Dublin. Using specialised equipment, it was successful in removing unsightly graffiti in local communities, delivering significant savings for communities and councils and providing a positive and visible benefit for the former. For the offenders, a sense of job satisfaction was developed, particularly given the appreciation shown by the communities for the work done. The positive impact on offenders manifested in consistent attendance, good performance and reductions in warnings. The project was further rolled out to the Dún Laoghaire-Rathdown County Council area and expanded in Cork throughout 2010.

Community service has also proven useful in reacting to events in local areas. In late 2009 following significant flooding in Athlone and Ballinasloe, community service assisted in the local response with flood relief and clean up work.

A significant number of community service projects involve environmental improvement programmes such as graffiti removal, picking up litter, gardening and so on. As well as working with local authorities, partnerships are formed with tidy towns groups and others. Since 2007, the probation service has worked in association with Monaghan Tidy Towns to utilise persons on community service. The work carried out under community service may vary from litter picking in housing estates in Carlow to the maintenance of a cemetery in Kilkenny or a cathedral and church yard in Enniscorthy.

Despite such projects, the value for money and policy review identified a significant shortfall in the capacity utilisation of the community service scheme. Nationwide, capacity utilisation was estimated at 33%. This figure is a reflection of the fact that a small number of courts were responsible for the majority of orders made. In 2006, 29 courts of 108 court venues accounted for 80% of the total number of community service orders, with just 12 courts accounting for 60% of the orders. From my inquiries, it clearly remains the case that a significant number of courts and judges only rarely involve themselves in making community service orders. Where community service orders might be more appropriate than short prison sentences, there is a far greater need for them to be applied to the benefit of the community generally in terms of works to be undertaken and persons convicted of offences making reparations to communities for wrongs done without incurring unnecessary expenditure to the public purse.

As a resource for local communities, the importance of community service should not be under estimated and every effort to extend its use should be encouraged. The probation service has been leading the drive to increase the number of persons who could potentially be placed on community service. A new model of delivery was piloted in the Dublin area in 2010 which incorporated new practices and modes of operation, new management systems and increased focus on overall governance and work place utilisation. During the operation of this new model, the number of orders imposed in the Dublin area was up by a third, and it is intended to roll out this model nationwide.

The success of such initiatives is evidenced by the increase in the number of community service orders over the last few years. In 2006, some 1,158 orders were made by the courts and this increased to 1,949 orders in 2010. I do not regard the achieved increase as close to the numbers of community service orders which could properly be made in the context of our criminal justice system.

There continues to be scope for greater use of community service and it is my strong view that community service should be considered where a sentence for a period of imprisonment for up to 12 months is being considered by a court. There has been a significant increase in sentences of up to this period. In 2009, for example, 9,216 persons were committed to sentences of up to one year, representing 85% of committals that year. As these sentences indicate, the offences involved are generally of a minor nature, with 40% for road traffic offences; these offenders should be considered for community service. To that end, the primary purpose of this Bill is to introduce a requirement on the courts to consider imposing a community service order as an alternative to custody in certain circumstances.

The proposed amendment provides that a court, before which a person is convicted and in circumstances where a sentence of up to 12 months would be appropriate, shall consider, as an alternative to that sentence, the imposition of a community service order. This is a specific obligation imposed on the court. The requirement to consider imposing a community service order in such cases will be the primary new feature of the community service process. However, the obligation introduced by this amendment is simply an obligation to consider making a community service order; whether the court proceeds to make an order is entirely a matter for the court. To impose any further obligation on the court would be an inappropriate interference with the judicial function. However, the obligation will ensure that some members of the Judiciary who up to now have failed to necessarily consider the imposition of community service orders in circumstances to which such orders may be more appropriate than the imposition of a short prison sentence may now do so. The decision to impose a community service order will also remain dependent on the satisfaction of the conditions for the imposition of such an order as set out in the 1983 Act and to which I earlier referred.

I will now outline the main provisions of the Bill. Section 2 amends the definitions section of the Criminal Justice (Community Service) Act 1983. The main change in this section is the amended definition of "relevant officer". Under the 1983 Act, a relevant officer is defined as "a probation and welfare officer discharging functions under this Act". This definition has been amended to read "a person who has been assigned by the director of the probation service to discharge functions under this Act and includes a probation officer discharging functions under this Act". In effect, under the new definition, a relevant officer may be a probation officer but may also, for example, be a community service supervisor or a member of the administrative staff of the probation service. The amended definition recognises that a number of functions of a relevant officer under the 1983 Act need not necessarily be carried out by a probation officer. This amendment to the definition of "relevant officer" will facilitate a reduction in any unnecessary administrative burden on probation officers.

I have already outlined the main provision of section 3 of the Bill, namely, to create an obligation on judges, in sentencing for an offence where imprisonment of up to 12 months may be appropriate, to consider imposing a community service order in place of imprisonment. This section introduces further new provisions into the 1983 Act, namely, placing a requirement on a court that considers a particular offender to be a person in respect of whom it may be appropriate to make a community service order, to request an assessment report from the probation and welfare service. This assessment report should be furnished to the court within 28 days. A provision to extend this period is included where there is good reason for doing so and it is in the interests of justice. These provisions essentially reflect existing practice.

Section 3(c) of the Bill proposes a new section 2A to be inserted into the 1983 Act. This new provision will confirm that the requirement under the Bill to consider community service does not affect the power to impose any other orders available to a court which provide for an alternative to sentence of imprisonment. In effect, the provisions of the Act will not preclude the imposition of any alternative sanction to imprisonment such as suspended sentence, application of the Probation Act or restriction on movement orders.

Section 4 of the Bill essentially restates the existing section 4(1) of the 1983 Act with reference to the assessment report under the new section 3(1B) inserted by this Bill. I have already referred to the conditions for the making of a community service order, which are that the court is satisfied that the offender is a suitable person to perform work under an order and arrangements to perform such work can be made. In reaching such a determination, the court will consider the offender's circumstances, the assessment report prepared by a probation officer, and, if necessary, hear evidence from such an officer. In addition, and importantly, the offender must consent to the making of an order.

Section 5 of the Bill restates section 6 of the 1983 Act but includes specific reference to the Circuit Court. While community service orders may be imposed by any court, excluding the Special Criminal Court, they have, until recently, normally been imposed in proceedings before the District Court. However, this form of sanction is increasingly being used by the Circuit Court and the amendments to the 1983 Act proposed by this Bill will further encourage the use of these orders by that court.

Section 6 of the 1983 Act requires an order to specify the district of residence in which an offender will or shall reside for the duration of the order. This has been amended to also include circuit of residence as would be appropriate where the order is made by the Circuit Court. A further amendment to this section requires a certified copy of the order to be sent to the director of the probation and welfare service, who shall ensure a copy of the order is given to the offender. Under the existing provision, this task was assigned to a relevant officer who was a probation officer. However, it is considered administratively expedient to centralise this function, allowing more accurate control of information on orders that have made as well as for the efficient onward transmission of those orders to offenders.

Section 6 of the Bill amends section 7 of the 1983 Act. These are minor amendments providing that the director of the probation and welfare service will direct an offender to report to a specified relevant officer. This section of the Bill also amends the provision in section 7 of the 1983 Act which allows for prosecutions for failure to comply with a community service order to be taken by a relevant officer. The words "relevant officer" have been replaced by "probation officer" and it is appropriate that such prosecutions would only be taken by a probation officer. Given that this Bill amends the definition of "relevant officer" to potentially include persons other than probation officers, this amendment provides the necessary clarification.

Section 7 of the Bill amends section 9 of the 1983 Act, which provides for the extension of time for the performance of work under an order. The Act provides that the hours of work under a community service order shall be completed within 12 months of the date of the order. However, this period may be extended under section 9 of the Act. The existing provision requires such applications to be made to the District Court. It is proposed to amend this by substituting the word "court" for "District Court". Where an order is made by the Circuit Court, it is appropriate that the court would amend the order where necessary and this section makes the required provision.

Section 8 amends section 10 of the 1983 Act, which allows for applications to the court for a change of residence of an offender. This follows on foot of the requirement in the Act that a community service order would state the district of residence or, on foot of this Bill, the circuit of residence of an offender. Section 10 of the Act is being amended to include references to the Circuit Court in addition to the District Court.

Section 9 amends section 11 of the 1983 Act, which provides for revocation of orders. Again, this section has been amended to make specific reference to the Circuit Court. In addition, applications for the revocation of an order could under the 1983 Act be made by the offender or by a relevant officer. The reference to "relevant officer" has now been amended to read "probation officer". As with the amendment introduced by section 6 of this Bill, applications for revocations are properly the function of a probation officer. Given the extended definition of "relevant officer" introduced by this Bill, the amendment provides the necessary clarification.

Section 10 of the Bill amends section 12 of the 1983 Act, relating to the jurisdiction of the courts. As I have outlined, a number of amendments introduced by this Bill have been done so to include specific reference to the Circuit Court. This section ensures the jurisdiction provisions of the 1983 Act apply equally to the Circuit Court as they do the District Court whether dealing with an application for extension of time for completion of community service, a change of residence by the offender or revocation of an order.

Section 11 again amends the 1983 Act so that the power to summon or, if necessary, order the arrest of an offender subject to a community service order is not limited to the District Court. Section 12 of the Bill clarifies that references in existing enactments to probation and welfare will be construed as references to probation. This provision reflects the Government decision of 19 May 2006 which included the re-branding of the probation and welfare service as the probation service. Given that the amendments introduced in this Bill refer to "Probation Service", "Director of Probation Service" and "probation officer", it is appropriate to take this opportunity to clarify references in existing legislation. This provision does that.

I will briefly address the impact of this Bill on prison capacity. The motivation to deliver the proposals contained in this Bill is not to deliver prison spaces, although in the short term, it may well provide some benefit in this regard. It is true that the number of committals for sentences of less than 12 months has increased in recent years. In 2009, 85% of the total number of sentenced persons committed to prison in that year received sentences of up to 12 months. However, according to monthly statistics, the proportion of people in custody on a daily basis who are serving short sentences is around 15%. The short nature of these sentences results in quick turn around of such prisoners with little or no accumulation effect on prisoner numbers for the following year.

Increasing community service will not significantly impact available prison space. This Bill is about diverting away from prison those persons receiving these relatively short sentences, and making them subject to a sanction which benefits them and their communities. Community service as a an alternative sanction to imprisonment is not new. Today, we are merely seeking to increase the use that is made of this sentencing option.

In spite of its seemingly simple purpose, this is an important Bill. It is a response to the findings of the value for money and policy review of the community service scheme and is a further step in diverting persons from prison where it is appropriate to do so. The Fines Act 2010 provided a balanced and more humane approach to the determination and collection of fines. That Act also provides for alternatives to imprisonment, including community service, in the event of a failure to recover a fine or its value in seized goods. This Bill is a further step in the pursuit of measures to increase, where appropriate, the use of non-custodial sanctions and reduce the use of imprisonment. It delivers a key commitment of the Government programme and is a step in our delivering a sentencing society at a lower cost to the taxpayer.

I again emphasise that the positive impact of community service is far-reaching - it delivers at a national, community and individual level. Financial benefits will accrue to the Exchequer from the significantly lower costs associated with community service as compared to imprisonment. The community obtains a measure of reparation and the benefit from unpaid work. Community service allows offenders to remain in work or education, maintain links with family and community and deliver reparation for the offence for which they have been convicted. There are persons sentenced to short terms of imprisonment who could, and should, be subject to a community service order. This Bill seeks to focus attention on and encourage greater use of this non-custodial sentencing option.

I commend this Bill to the House.

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