Jonathan O'Brien (Cork North Central, Sinn Fein)

While the Bill before the House does not represent a wide-ranging departure from existing legislation it has the potential to kick-start a wider debate on our sentencing and prison policies. At a time when we face the reality of an already overcrowded prison system, when prison numbers continue to increase rather than decrease, when the operational procedures and conditions within prisons are suited more towards punishment rather than rehabilitation and when many people are of the opinion that we are not getting value for money, then it is important to debate the future of how we deal with crime in this State.

The recent decision by the Minister to review the future viability of Thornton Hall is to be welcomed and I congratulate him for initiating such a review. It would be prudent if this review formed part of a wider debate on the future direction of our sentencing and prison policy. As a society we require a complete re-orientation of the penal system away from the prison and towards restorative justice in the community. We must shift the prison from centre stage and devise more imaginative, humane, compassionate and effective ways to deal with the petty offenders who form the bulk of those sent to prison each year. This Bill, coupled with the review of Thornton Hall, presents the House with the ideal opportunity to draw a line in the sand on a sentencing policy which has frustrated and continues to frustrate many members of the public.

In my constituency of Cork North-Central many people struggle to have faith in a judicial system which on the one hand allows a convicted heroin dealer caught with drugs with a street value of almost €200,000 to get a six year suspended sentence, while on the other hand the same justice system sent an individual who failed to pay a fishing fine to Cork Prison for almost one week. This is only one example of how the inconsistencies within the sentencing policy currently being implemented leads to a lack of trust and faith in our Judiciary. It is for this reason I urge the Minister, in the context of the review in regard to Thornton Hall, the passage of this legislation and the introduction of all future justice legislation, to examine what works, what is in the best interests of society, of those working within the prison system, the offender and, most importantly, what will give the taxpayer the best value for money.

Unless proper drug and rehabilitative supports in prisons are resourced, alongside educational facilities, and other steps are taken to address recidivism, we will simply be ignoring what has been proven internationally to work. It is time that we all acknowledged that creating a few 100 extra cells is not a sufficient mechanism to tackle the growing prison crisis we face.

What is needed is a well thought out and adequately resourced strategy to deal with the increasing rates of imprisonment. The increase in prison numbers has led to a prison system bursting at the seams and has contributed to the creation of serious health and safety issues within the prisons, as well as increasing the dangers faced not only by prisoners but by staff working within our prisons. Therefore, it is imperative that all future justice policy needs to be very mindful of the causal factors, such as poverty, imbedded disadvantage, inequality and addiction, which are helping feed these increases. While the number of prisoners has grown through a variety of factors such as those I mentioned, we should also recognise that an increase in the use of custodial sentence alongside a complex asylum and immigration system and the enactment of criminal justice legislation since 2000 have been contributory factors.

The move towards the provision of mandatory minimum sentences for an expanding number of offences is a questionable policy. Mandatory sentences have been proven internationally to not only swell prison numbers but to have little or no impact on crime trends.

During the past decade we have seen a slow but progressive increase in the prison population while also experiencing a sharp increase in the daily average number of persons in custody. What this appears to indicate is a slow increase in the prison numbers, exacerbated by an increase in prison sentences for minor offences, which are being held back by overcrowding. It was reported that in April 2010 overcrowding in the Irish prison system had reached record highs and that, as a consequence, more than 800 inmates were freed on the early release programme as there was insufficient space to contain them. The vast majority of those were serving sentences of less then 12 months.

International research indicates that short prison sentences act neither as a deterrent nor as a means of rehabilitating the offender. This goes to the very heart of the debate. Do we as a State view prison sentences as a tool to punish or as an opportunity to rehabilitate offenders? There is no question that the relatively limited duration of many sentences handed down by our courts, especially those of 12 months and less, means that there is little or no scope to provide people with rehabilitation services.

The same question can be asked of the community service orders. Do we view them as a means to punish or rehabilitate? The answer is dictated by the model Ireland employs. The application of the community service order scheme differs from country to country and the outcomes depend on the type of model used. For example, some community service models focus on educating offenders about the impact their crime has on victims, the wider community and the offender. Some models focus on training offenders in useful skills while others involve more menial tasks. Ireland falls into the latter category.

The Probation Service in its 2009 annual report describes the work involved in the community service order scheme in use as including, "landscaping, painting, decoration, repairs and renovation, work support to community centres, sports clubs and schools among many other challenging schemes in local communities". The imposition of community service orders must be twofold. First, they must be about accountability and, second, they should be about rehabilitation.

Those who commit crime must be held accountable for their actions but as a society we have a responsibility to ensure that offenders get the opportunity to access proper training and education in order that they do not become repeat offenders. Some will question this approach. They will state that a person who commits a crime should do the time and that the State should not spend valuable resources on trying to rehabilitate him or her. While this may be a valid opinion it is not one I share. A judicial system which is only geared towards punishment and does not recognise the benefits of rehabilitation is counterproductive. Any legislation which moves our justice system further towards rehabilitation and accountability rather than just being focused on punishment is to be welcomed. This Bill does that.

The Bill sets out when a court shall or may consider a community service order where a prison sentence would otherwise have been enforced. It does not create any new sentence that does not already exist in Irish law. Community service orders are already a tool which is open to the Judiciary when dealing with convictions. That is an important fact to be highlighted.

At present the Judiciary is free to disregard community service orders as an option to imprisonment. This amending legislation proposes to change this situation by making it a requirement to consider community service orders as an alternative to imprisonment for minor offences. In recent years there has been an increase in imprisonment for minor offences, which has had far-reaching implications for society in terms of prison overcrowding, prison conditions and the ability to rehabilitate offenders, in addition to increasing public expenditure levels. All the data available to us on prison numbers appear to show that a large number of imprisonments are for minor offences, and that these numbers are on the increase.

A recent report by the Irish Prison Service shows that between 2004 and 2009, prison sentences of between six and 12 months increased by more than 50%, sentences between three and six months increased by almost 60%, while sentences of less than three months increased by a staggering 188%. In 2009, 10,865 prison sentences were imposed by the courts and of this number 9,216, or 85%, were for sentences of 12 months or less.

When speaking to people about this proposed amending legislation two questions repeatedly came up. The first was the type of crime those people serving sentences of less than 12 months had committed. To answer the question we can look to the Irish Prison Service which recently produced a snapshot of the type of offenders who were serving prison sentences of 12 months or less. This snapshot was conducted on 4 December 2009 and it revealed that on that day, 467 people were in prison serving sentences of less than 12 months, 40% were serving sentences for offences against property without violence, 17% were for road traffic offences, 58 people, or 12%, were serving sentences for offences against the person and 1% were serving sentences for offences against property with violence.

More recent data show that fine defaulters accounted for more than 3,300 committals to prison in the first ten months of 2010. This statistic is very troubling. It is particularly worrying to realise that people who fail to pay small fines, for whatever reason - people whose offending should not be serious enough to attract a custodial sentence in the first place - end up in prison. As they serve short periods in custody, fine defaulters account for only 1% or 2% of the prison population on any given day, therefore, leading to a distortion of the figures.

These statistics give rise to concerns among the public that offenders who have committed crimes of a certain nature could become the beneficiaries of this legislation. These concerns are genuine, particularly when one considers that those who committed crimes of assault with violence, drug-related crimes, crimes of a sexual nature or offences against property with violence comprised 23% of those serving 12 months or less when the snapshot was taken on 4 December. I am of the opinion that section 3(b) and section 4 deal adequately with the concerns to which I refer.

Section 3(b)(1B) provides that where a court is considering making a community service order in lieu of a prison sentence, it must give notice to the probation service. It should also be noted that the Bill seeks to improve existing legislative provision and make the procedure and system of making such probation reports more standardised by providing a time limit for efficiency and certainty within the process. This is reflected in section 3(b)(1C) which states that there will be a requirement on the probation service to act in a speedy manner when a judge indicates that he or she is considering a community service order in lieu of a prison sentence. In addition, section 3(b)(1D] states that the assessment report by a probation officer should be given within 28 days of court notice to the Probation Service. In exceptional circumstances this time period can be extended, where there is good reason for doing so and where it would be in the interests of justice so to do.

Section 4(a)(1) states that a court shall not make a community service order unless the following conditions have been complied with:

(a) the court is satisfied--

(i) having considered the offender's circumstances,

(ii) having considered the assessment report prepared by a probation officer pursuant to the request under section 3(1B), and;

(iii) where the court thinks it necessary, having heard evidence from such an officer,

that the offender is a suitable person to perform work under such an order and that arrangements can be made for him or her to perform such work:

(b) the offender has consented to the making of such an order.

Section 4(b), which inserts the new paragraph (c) into the principal Act, states that "under this Act the court may review the order on the application of either the offender or a relevant officer". These proposed changes will be important additions for improving public confidence in our sentencing policy, particularly in respect of the use of community service orders.

The second question people continually put to me when discussing the Bill is whether it represents good value for money. This should come as no surprise in the current economic circumstances. People not only want better legislation, they want legislation that represents value for money. While the explanatory memorandum states that there will be no additional costs in implementing the Bill and that the existing resources of the probation service will meet the expected increase in community service orders, it is very important to recognise that the introduction and passing of this legislation will inevitably lead to greater demands being placed on an already over stretched probation service. That is despite efforts to address this issue in section 2.

The probation service must continue to be adequately resourced into the future so that this increased volume of community service orders can be administered in an effective manner. This will present a challenge in the current economic climate but it is one in respect of which the Government cannot afford to cut corners. Failure to adequately fund the probation service will undo everything this proposed legislation sets out to achieve.

An increased use of community service orders will undoubtedly lead to savings in the overall scheme of things. The value for money analysis of the community service order scheme, carried out by the then Department of Justice and Law Reform in 2009, demonstrated that the use of community service in lieu of prison sentences would produce significant savings. The cost per community service order is estimated at just over €4,200 per offender while the alternative costs of imprisonment are estimated to amount to just under €27,478 per offender. The State should not see these savings as a means to an end but rather as an opportunity to reinvest in crime prevention measures such as the juvenile diversion programme as well as increasing funding to the probation service to deal with the added number of reports to which the legislation will inevitably give rise.

Apart from the financial benefits the community service order scheme will bring, there are far more important factors to be considered. The debate on whether community service orders help reduce offending rates should be central to the Bill. The part of the probation service report of 2009 which examines the features and benefits associated with community services orders shows the social advantages of such a scheme. The relevant data was collected from 29 senior probation officers who were asked to identify the main benefits associated with the community service scheme. From their responses, it can be seen that the benefits of community service orders include offenders remaining in work or education and remaining part of their families and communities. In addition, the scheme can provide an opportunity to

learn new skills as well as providing a means for offenders to make amends for their actions, which is an important point.

All of that to which I refer will have a positive effect on communities and offenders. However, there is additional room for improving the Bill and perhaps certain possible improvements could be considered in more detail as the legislation progresses through the House. For example, the presumption against imprisonment in section 3(a)(1)(a) should be strengthened by requiring the sentencing judge not only to consider imposing a community service order in lieu of imprisonment for a qualifying sentence but by obliging him or her to provide written reasons relating to a decision to imprison an individual before the courts rather than to impose a community service order.

When I was reading section 3, I identified one glaring omission. Consideration should be given to making the necessary inclusion to rectify the position. Every crime has a victim and the effect of a crime on the victim should be a central consideration when a judge leans towards the imposition of a community service order rather than a prison sentence. We must examine the possibility of including victim impact statements as part of the process relating to determining whether someone is suitable for a community service order.

The community service order scheme, particularly for minor offences, can have many advantages. For society it can be more cost-effective than prison, for offenders it may mean the difference between a life of crime and a wake-up call and for communities it provides a tangible benefit through works and services which might otherwise not be undertaken. Most importantly, it can benefit society through reducing recidivism rates among offenders. For all these reasons, I welcome the Bill but with the caveat that the suggestions I made earlier in respect of victim impact statements and that the possibility of redirecting any savings accrued by the implementation of this legislation into the area of crime prevention be investigated.

See this speech in context