Paul Kehoe (Wexford, Fine Gael) | Oireachtas source

With the agreement of the House, I will share my time with Deputy Kieran O'Donnell.

I thank Deputy Calleary for bringing this Bill before the House and to all the Deputies who have contributed to the debate. It is clear that the subject matter of the Bill is one to which each of us can relate. We are all aware of the very important work done by people operating in front line duties and the difficulties and challenges they often face. It is, of course, imperative that such persons are protected in carrying out their work and that the law reflects and responds to the situations in which they find themselves. The spirit and intention behind this Private Members' Bill is, therefore, clear. It is to provide protection to sectors of the community, such as workers in front line and emergency positions.

I also recognise that there can be public concerns about the protection of such workers, particularly if there has been an incident involving a front line emergency worker. I have no doubt that the motivation of the Deputy in bringing forward the Bill arises from similar concerns and I welcome the work carried out by the Deputy on this issue. However, there is already legislation in place which is more appropriate and comprehensive in meeting such requirements.

First, I remind the Deputy that the general law relating to assaults is contained in the Non-Fatal Offences against the Persons Act 1997 which deals comprehensively with a wide range of assault provisions, the more serious of which carry heavy penalties. Let us not forget that the assault and related provisions in that Act apply to assaults on all sectors of our community which of course also includes emergency workers. That Act provides for penalties of up to ten years imprisonment for an offence of threats to kill or cause serious harm and up to life imprisonment for causing serious harm.

The Deputy spoke about the attack on Garda Robert McCallion. The DPP brought a charge of manslaughter, not murder, in that case. The murder of a garda on duty is also covered by the Criminal Justice Act 1990, where a minimum sentence of 40 years is provided for. That Act also provides for penalties of up to ten years imprisonment for the offence of threatening to kill or cause serious harm and of up to life imprisonment for causing other serious harm. In regard to attacks involving syringes it provides for penalties of up to ten years imprisonment or up to life imprisonment, depending on the seriousness of the offence involved.

In addition, Section 19 of the Criminal Justice (Public Order) Act 1994, as amended by section 185 of the Criminal Justice Act 2006, provides explicit statutory protection for emergency type workers in regard to offences involving assaults or threats to assault. Section 19 provides that any person who assaults or threatens to assault a person providing medical services at or in a hospital or a peace officer acting in the execution of their duty is guilty of an offence and is liable on conviction or indictment to a fine or to imprisonment for a term not exceeding seven years. This offence also applies to assaulting or threatening to assault a person assisting a person providing medical services or a person acting in the aid of a peace officer and to a person assaulting or threatening to assault any person in order to resist or prevent an arrest. Section 19(3) also provides for an offence of resisting or wilfully obstructing or impeding a person providing medical services, a peace officer or a person assisting.

I will now turn to the issue of mandatory sentencing and presumptive minimum sentencing which is relevant to section 3 of the Bill. As Deputies are aware, the traditional approach to sentencing is for the Oireachtas to lay down the maximum penalty and for a court, having considered all the circumstances of the case, to impose an appropriate penalty up to that maximum, applying the principle of proportionality. There are some exceptions to this, such as a mandatory sentence for murder and presumptive minimum sentences for certain drug trafficking and firearms offences. In the latter case, the relevant legislative provisions set down a minimum sentence to be imposed unless the court is satisfied that there are exceptional and specific circumstances relating to the offence or the person convicted of the offence which would make such a sentence unjust in all the circumstances.

The current position in relation to mandatory sentences is that the Law Reform Commission was asked by the previous Attorney General to examine the issue of mandatory sentencing. The Law Reform Commission has published a consultation paper on this topic following which, as is the normal practice, it invited submissions on the subject from interested parties which it will consider before preparing a final report. One of the preliminary recommendations of the consultation paper is that the presumptive sentencing regime as it applies to certain drugs and firearms offences should not be extended to any other offences but should be reviewed. When the final report of the Commission is available the recommendations contained will be fully considered by the Minister who would not want to pre­empt or pre-judge such recommendations. Deputies will be aware that the Minister for Justice and Equality has established a working group to conduct a strategic review of penal policy which will also include an examination of sentencing policies.

In regard to this Bill, I should mention that the presumptive minimum provisions contained within it do not contain all the important components included in existing legislation dealing with presumptive minimum sentencing. There is no provision for the court when considering whether the sentence would be unjust, to have regard to matters such as whether the person has previously been convicted of such an offence or whether the public interest would be served by a lesser sentence.

The presumptive minimum sentencing would not apply to a child, which is defined in section 1 as any person under the age of 16 years. The other legislation which provides for presumptive minimum sentencing, that is, certain drugs and firearms offences, provides for an age-related exception but this relates to a person under the age of 18 years not 16 years. It would not be appropriate to provide for different age limits for such exceptions within the Statute Book as it does not have regard to consistency in our policies and indeed our approach to young persons.

I am sure the Deputy is aware that for the purposes of legislation generally on the protection of children and the juvenile justice system, children are defined as being persons under the age of 18 years.

The Bill also fails to take proper account of the evolving international human rights standards governing the treatment of juveniles under 18 years who are deprived of their liberty. The application of a presumptive minimum sentence to persons between 16 and 18 years is inconsistent with the 2008 European Rules for Juvenile Offenders subject to Sanctions or Measures, which stress that deprivation of liberty shall be a measure of last resort and that all sanctions and measures must aim at education, social integration and individualisation. It is a reasonable inference from international human rights standards that the baseline approach should be to give sentencing courts a principled discretion to impose a penalty or intervention that is the least restrictive or punitive option that is consistent with the gravity of the offence, the age and level of maturity of the particular offender and which meets the need for community protection.

There is also a difficulty with the definition of "emergency worker" which applies to members of the Garda Síochána, various categories of ambulance services as specified, employees of a local authority who are members of a fire crew travelling to or from the scene of a fire and any medical practitioner or nurse providing medical care in the accident and emergency ward of a public or private hospital. I have already referred to section 19 of the Criminal Justice (Public Order) Act 1994. That legislation covers a broad set of emergency workers, including prison officers and members of the Defence Forces who would not be covered by this Bill. In addition, the definition in the 1994 Act of persons providing medical services is extremely comprehensive, ensuring both that all relevant medical personnel are captured and that it applies to such staff anywhere in the hospital, whereas this Bill restricts the protection of the named workers to the accident and emergency ward of a hospital.

The definitions applied to ambulance services in this Bill seem to be too narrowly defined, somewhat inaccurate and could result in certain personnel being excluded. The phrase "transportation of seriously ill people" is inappropriately narrow. What if the patient is only moderately ill? In addition, the definitions do not reflect the ambulance service system in place. Ambulance services are provided by the national ambulance service, Dublin Fire Brigade to the HSE in Dublin and by other voluntary organisations such as St. John Ambulance, the Order of Malta and the Red Cross. The definition of members of fire crews is also restrictive, for example, it provides that they must be travelling to or from the scene of a fire. This would exclude many call outs for such fire crews.

Section 1 of the Bill defines "assault causing serious harm" as having the meaning afforded to it by section 4 of the Non-Fatal Offences Against the Person Act 1997, "threats to kill or cause serious harm "as having the meaning afforded by section 5 of that Act and "an injury of another caused by the piercing of the skin of that other with a syringe" as having the meaning afforded to it by section 6. Section 2 goes on to apply these offences to emergency workers while on duty. While section 3 deals with penalties in the sense that it provides for a presumptive minimum sentence approach, it is likely that some changes would be required to ensure the maximum offence provisions in the Non-Fatal Offences Against the Person Act 1997 apply, which I assume the Deputy intended.

I conclude by again thanking Deputy Calleary for his work on and interest in this issue. All of us are thankful for the outstanding dedication and commitment of those who work in emergency services and the important role they play in our society. However, the Government is opposing this Bill on Second Stage for the reasons I have outlined. There is already comprehensive legislation in place and it would be premature and unwise to introduce legislation which provides for a mandatory sentencing approach in advance of the report of the Law Reform Commission. There are also a number of technical difficulties with the Bill.

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