Pa Daly (Kerry, Sinn Fein) | Oireachtas source

The purpose of this Bill is to rectify any constitutional infirmities in legislation identified by the Supreme Court in the case of Wayne Ellis. In its judgment in May 2019, the Supreme Court found that the Oireachtas could impose mandatory penalties but only if applied to all persons.

It is not constitutionally permissible for the Oireachtas to specify a mandatory penalty which only applies to a limited class of persons, such as a person who had previously committed one or more listed offences. The Supreme Court held that the application of a penalty in such cases is the administration of justice and, under Article 34 of the Constitution, may only be administered by the courts. The Bill is intended to remedy this fault.

It is easy to come into this Chamber and appear to be hard on crime and propose mandatory minimum sentences but we must consider the balance of powers and the constitutional requirements. This Bill is welcome in what it sets out to do, namely, to abolish certain mandatory minimum sentences, some which have been on the statute books for more than a century. According to The Irish Times, the facts of the Wayne Ellis case were that he had been successfully addressing his drug problems at Coolmine drug treatment centre and had not come to adverse Garda attention in the interim. The suspension was imposed on the basis of the "last chance" principle. The Director of Public Prosecutions, DPP, successfully appealed the sentence as being unduly lenient to the Court of Appeal, which imposed the mandatory minimum sentence of five years' imprisonment. On appeal the relevant legislative provisions were struck down. The Supreme Court ruled that they were an overreach by the Oireachtas into the powers reserved for the Judiciary, that is, deciding the length of a sentence.

Today, we heard demands for longer sentences to be passed in respect of the events in Killarney over the weekend without any evidence that what happened was actually caused by a criminal act. People must understand that it is very important to address the underlying issues because while it is easy to be seen to be tough on crime, it is much harder to come up with solutions and investment in education, particularly in inner city communities. It is harder to find more park rangers and to put in place a proper system and a crisis management plan for Killarney National Park, for example.

Going back to the Ellis case, the Supreme Court ruled that the Oireachtas does have a role but it is worth reflecting on whether we should assume this role with respect to mandatory minimum sentences. The Law Reform Commission recommended no new mandatory minimum sentences be introduced onto the Statute Book. Most of the time, when there are calls for mandatory minimum sentences, it is more to do with publicity for the Member in charge, rather than any real understanding of the law. The position of the Irish Penal Reform Trust, IPRT, is that we should look towards the repeal of others, but we must grasp the hard questions. In respect of many of the other mandatory sentences on the books, it may not be politically palatable to tackle them, but this should not stop us.

Crime is changing and the pandemic is accelerating this change. The number of petty offences is down all over the country but more serious offences are increasing and there is a shift towards more serious organised crime. It reflects the economics of crime for the criminal gangs as in-person opportunities to make money decline. We should do everything we can to prevent their increased power and sophistication.

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