Kathleen Lynch (Cork North Central, Labour)

Effectively, the same issue was raised in the House last week by Deputy Charles Flanagan. The lady in question has been in jail for a few weeks and it seems Deputy Flanagan has been working on the issue. It was made clear when he raised the issue that the Minister for Justice and Equality was not in a position to comment on a particular case before the courts. The comments made then were about policy in regard to alternatives in law to imprisonment in the context of civil disputes that might arise between parties, the changes that had recently been made and, in line with the programme for Government, the examination taking place in the Department with a view to improving the operation of the law, where possible.

Deputies will appreciate that the courts are independent in their functions, subject to the Constitution and the law, and that, therefore, it would not be appropriate for anyone to comment in this House or elsewhere on a case still before the courts. They will also be aware that in a civil matter a court is asked to adjudicate on a dispute between two or more parties. Such disputes can arise in cases of recovery of debt, including maintenance debt, performance of a contract, trespass, interference with property and so on. These matters are determined by the courts on a daily basis.

The court makes its decision on the basis of the facts involved and the rights of the parties. Such rights may be constitutional, statutory or common law rights, or they may arise under the European Convention on Human Rights. The court, in deciding the matter, may order an appropriate remedy. This could involve payment of damages, restoration of the status quo or an injunction to either carry out an action or to desist from an action. Moreover, the court does not have a power in civil cases to impose a custodial sentence as part of its remedy in favour of one of the parties. However, it remains a critical feature of the legal system that court judgments should be obeyed by those at whom they are directed. If the person or persons concerned refuses or refuse to obey the order or implement the judgment of the court, the issue of a court sanction may well arise. The sanction may take the form of imprisonment. Civil contempt in the context of such a refusal may lead the judge to order the imprisonment of the party or parties involved until the contempt is purged, that is, until the party agrees to implement or abide by the order. This imprisonment is not a punishment, nor does it replace the necessity to comply with the order of the court.

The Minister for Justice and Equality has powers under the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003, to order the temporary release from prison of a person serving a sentence of imprisonment. He also has powers under section 23 of the Criminal Justice Act 1951 to commute or remit any punishment imposed by a court exercising criminal jurisdiction. However, it is important to note these powers are limited to persons who have been convicted and sentenced after a criminal trial.

I am informed by the Irish Prison Service that the person mentioned has been in custody in the Dóchas Centre, Women's Prison, Mountjoy Prison since 13 September, having been held in contempt of court. I understand a number of requests to visit the person were made to the management and staff of the Dóchas Centre last week. Visits are facilitated, subject to the approval of the Governor and the usual conditions which apply. Callers in this instance who included one of the Deputies who have spoken were informed that, in accordance with the prison rules of 2007, requests for visits had to be made in writing to the Governor who would then consider the application. I am informed that no written request has been received by the Governor at this stage.

Procedures are in place to facilitate telephone calls and, while there was a request for an interview, this was refused owing to the court proceedings involved. However, unauthorised contact was subsequently made and I understand the Irish Prison Service will be following up on this. I stress again that the Minister has no powers in cases where a person is committed to prison for contempt of court. The High Court still has seisin of such a case and it is only that court which can decide on the matter. In this case, the matter is between the parties to the case and the High Court and the Minister cannot intervene.

I take on board what the Deputies have said. I hope common sense will prevail and that mediation will take place in some form.

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