Brendan Howlin (Wexford, Labour) | Oireachtas source

I wish to signal the Labour Party's support for this short but important item of legislation. The Supreme Court delivered its judgment in Ellis v. the Minister for Justice on 15 May 2019. According to the Supreme Court:

[The case raised an] important and difficult question of the constitutional boundary between the respective roles of the Oireachtas and the Courts in deciding what is the appropriate sentence to be served by a person convicted of an offence.

As the Minister of State indicated, the purpose of the Bill is to deal with all other legislation that suffers from the defect identified in the Ellis case. That case concerned a firearms offence for which the Oireachtas had prescribed a mandatory minimum sentence of five years, but only for a second or subsequent offence. The court outlined principles relevant to the separation of powers and the respective roles of the Oireachtas and the courts in determining the sentence to be imposed on a person convicted. Both the Oireachtas, as part of the lawmaking function, and the courts, as part of the administration of justice, have a role in determining a sentence. However, there is a clear distinction between the prescription of a penalty, fixed or otherwise, and the selection of a penalty for a particular case.

It is constitutionally permissible for the Oireachtas to provide in legislation that a specified penalty will apply on the commission of a specified identified defence that all persons convicted of a particular offence, such as murder, shall be subject to the same fixed prescribed penalty. That is not in breach of the separation of powers, although it would be subject to separate constitutional constraints which require a rational relationship between the penalty and the gravity of the offence - it would not, for example, be open to the Oireachtas to prescribe an outlandish penalty for a relatively minor offence. Otherwise, however, the selection of the punishment to be imposed on a particular person convicted of a particular offence forms part of the administration of justice role which, under the Constitution, is exclusively a matter for judges sitting in our national courts. The convicted person has a constitutional right to receive a sentence appropriate to his or her degree of guilt and to his or her relevant personal circumstances. The legislation in this case has sought to provide a fixed or a minimum mandatory sentence which did not apply to all persons convicted of that offence but only to that limited class of offenders determined by reference to one characteristic of the offender, namely, that an individual offender had prior convictions. Prior convictions always form part of the consideration of the factors by a sentencing judge in reaching what he or she determines to be the appropriate sentence.

The question to be determined here was whether it was permissible for the Oireachtas to legislate for a mandatory minimum penalty which is not universally applied to all persons convicted of that particular offence. The penalty applied only to a limited class of persons who committed the offence and the class was determined by reference to only one of the potential relevant circumstances in which the offence was committed only one of the characteristics of the offender would be taken into account in determining the sentence. The court, looking at that, held that the Oireachtas had impermissibly crossed the dividing line in that constitutional separation of powers between the prescription of a general sentence for an offence and the selection of the appropriate sentence in each individual case. This, therefore, has wider implications than simply the case at hand and that is why a number of statutes, all listed by the Minister of State and referenced by some of my colleagues, are being amended.

It raises also the broader issues I have dealt with in contributions in this House over the years, including the broader issue of the appropriateness of mandatory sentences is in any event. The classic arguments for mandatory sentences are first that there is clarity, so that somebody who is about to commit an offence understands there is a very serious penalty prescribed in law; for example, anybody contemplating murder knows there is a mandatory life sentence if he or she is convicted of it. The second argument concerns consistency. It is important that a sentence is not determined by the individual judge or the geographical location and that there is clarity in the context of sentences. The third argument is obviously what is in the mind of Members of the Oireachtas in determining criminal sanctions, namely, the effect of a deterrent. Thus, clarity, consistency and acting as a deterrent are the normal arguments put forward for mandatory sentences. However, there is an argument against, namely, that every case is different and every set of circumstances is unique. As we listen in more and more to court cases or read about them in our national newspapers we understand the various differences involved in sometimes very serious criminal activity.

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Flexibility must be given to professional and competent judges to form their decisions on what is the appropriate sentence, given all the circumstances that cannot be in the minds of legislators and that apply or occur in any individual case.

The advent of the Judicial Council and the availability of advices from their peers on sentencing lessens the need for mandatory sentences. I am mindful of the experience in other jurisdictions. Often in times of heightened concern about relatively small numbers of offences, people are genuinely frightened, particularly elderly citizens in our communities. They feel particularly vulnerable to crime and reading about it, hearing about it on the radio or seeing it on the television genuinely frightens them. There is often a political response to that because politicians are summoned to public meetings, there are concerns that there is not enough strength in the law and quite often, as is our tool, legislators reach for stronger legislation.

If one looks at the experience in some jurisdictions, such as in the United States for example, sometimes that has resulted in disastrous consequences. If one looks at the general incarceration rate in the United States, it is quite shocking. What is even more shocking is the three-strikes law if one commits three crimes. Whatever the third crime is, such as not paying alimony or a road traffic offence for example, if it is an indictable offence one faces mandatory life imprisonment in some states in the United States. That falls disproportionately on some sectors of the community, such as the poor, and the United States is also racially unbalanced. In five US states, including the state of Minnesota, which has been in sharp focus in recent times, black males are incarcerated at a rate of 10:1 in comparison with white males. A black man has ten times the prospect of being incarcerated as a white man in five US states. In the state of Oklahoma, one in 15 black adult males is in prison. In 11 states, one in 20 black adult males is in prison. In 2010 in the United States, black people made up 13% of the population and 40% of those who were in jail.

That brings us to the broader issue of politics and crime. Fear of crime is much more prevalent than people's experience of crime. We have, in relative terms, a low rate of crime in this country thank God. That does not mean many in our communities are not in dreadful fear of their personal safety or the safety of their families or children. Fear of crime is a hugely debilitating and life-limiting issue that we as politicians need to address. Politicians rightly respond to the concerns of our electorate and mandatory sentencing is often the solution or remedy that is put forward at public meetings and offered by us in the Oireachtas.

I am glad we have a Judiciary that is not elected, whose members are appointed professionally and who cannot be removed except for extraordinary and exceptional matters. In fact, we have never impeached a judge since the Constitution was enacted in this State. Judges are not subject to external pressures in the administration of justice. That is an extraordinarily important bulwark for us and a great safety for our people. As an adjunct to that statement, it is important that the Judiciary are plugged into the reality of life for many of our citizens and communities, particularly vulnerable communities which some colleagues have described earlier and where there is a lot of criminality. Even low level criminality is extraordinarily debilitating. If people cannot walk out their doors, across their streets or across their estates without feeling intimidated, being followed or potentially being stalked, that is a problem.

I am in agreement with the suggestion put forward and we have talked about this many times. The solution is not mandatory sentencing or ever more years in prison being prescribed, which often simply professionalises amateur criminals. The solution is a reconnection between policing and communities. I have been talking about these matters since I first put forward legislative proposals the bones of 20 years ago to establish the Policing Authority based on the model of the Northern Ireland Policing Board. I went and spoke to the chairman of the Northern Ireland Policing Board, and the deputy chairperson, who I invited to Dublin to speak to us too. When the Labour Party was in government we eventually got around to enacting the Policing Authority.

We need to safeguard the principles that underscored the establishment of An Garda Síochána in the 1920s, that there would be unarmed community policing. Even the name An Garda Síochána signifies that its members are the guardians of the peace. It is not there to enforce but to be the people's guardians. That means community policing in a real sense. I welcome the inclusion in the Commission on the Future of Policing in Ireland report of community policing as an integral and essential part of policing. We must have members of An Garda Síochána in every community who are linked into the community with a knowledge of who is who and what is what. If there are difficulties, members of the Garda must be able to go and talk to individuals and be visible, and not simply breeze through in a police car. They must be of the community so that people know that Garda John or Garda Máire is the local community garda and that if there is a problem they can talk to him or her about it and a positive response will be made about it.

These changes are envisaged and I know that yesterday the Government approved the new transformation envisaged by the Commission on the Future of Policing in Ireland. I do not know if the Minister without portfolio, Deputy McEntee, will wait until she is back in the House to present that legislation because it will take some time to tease out. I am strongly in favour of the vast bulk of it. I have met the chair of the review group to discuss it with her and I have also discussed it with dissenting members who had a minority report, as the Minister of State will know, on one aspect of it in particular, which causes me concern. I was determined in recent years, particularly during our time in government when we were bringing in the Policing Authority, to have the appointment of senior Garda officers removed from the domain of the Garda itself and be done independently. I confess that I have not read the legislation because it was only published yesterday but I look forward to reading and debating it. I would be concerned if we reverted to an in-house appointment system. One of the great changes brought about by the Policing Authority was an independent system of appointing senior gardaí.

I am very anxious that the reformed Policing Authority incorporating the inspectorate would have that role and I will debate this with the Minister.

A critical part of all of this, and the hallmark of policing, will be an integrated community policing model, which exists in many countries. I happened to visit policing systems in Japan, where every community has a little hut at the end of the street where there is a local police officer whom people know and consult and speak to about things. That police officer is able to watch everything from bad traffic management to littering. It is these small things that debilitate communities. There could be an issue with the quality of the environment in a community because of people being careless with litter or driving motorbikes or whatever else carelessly. Anchoring policing in the community can transform this to the good. Sometimes we clamour about the location of a Garda station but that is no good if we do not have people. I do not want gardaí in stations, I want them visible in communities, walking around and talking to people knowing the communities they serve. I want them to be able to receive intelligence and act intelligently on intelligence, not with a heavy hand but with knowledge of their communities and knowing what to do. I am hopeful that the review of policing being carried out will result in this.

The legislation before us is with regard to the decision of the Supreme Court on ensuring each case is taken on its own merits and that the final determination of a sentence is the proper role and function of an appointed judge, hopefully acting in a much more collegiate fashion under the new systems we have put in place for judges to speak about sentencing, and having more consistency and more collegiality on these matters. In the meanwhile, we certainly need to continue to amend the law and I will wholeheartedly support the Bill. I look forward to Committee Stage when we might tease out one or two of the points I have touched upon.

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