Niall Collins (Limerick County, Fianna Fail)

I am happy to address Dáil Éireann on the final piece of business for this term. I thank the two Deputies who we have just heard from and also to acknowledge former Deputy, Patricia Ryan. All three were involved in introducing this Private Member's Bill in December 2023. The Bill addresses a topical issue in the administration of a fair system of justice and one which has the potential to contribute to more efficient use of prison capacity, while ensuring that the rights of victims are upheld. The stated purpose of the Bill is to clarify the processes and procedures for referrals to restorative justice schemes, with the aim of increasing their use in the criminal justice system. The Deputies anticipate that this would aid in giving victims closure and improving victim recovery and satisfaction with the justice system.

It also envisions that participation in restorative measures would mean that, in some cases, prison sentences can be avoided. It is hoped that this rehabilitative approach would lead to decreased re-offending rates and assist in freeing up our overburdened court system and prison system. Earlier this week, my colleague, the Minister, Deputy O'Callaghan, received approval from Cabinet not to oppose this Bill on Second Stage. It is well intentioned and it aligns with the programme for Government commitment to continue to roll out nationally the voluntary restorative justice programme.

Restorative justice is provided for in the Criminal Justice (Victims of Crime) Act 2017. It is defined as being any scheme through which, with the consent of each party, a victim and an offender or alleged offender, engage with one another to resolve, with the assistance of an impartial third party, matters arising from the relevant offence, or alleged offence. In recognition of the differing needs of children, the Children Act 2001 includes tailored provisions for restorative justice for those under 18 years old. This is administered through the system of youth diversion programmes, which are overseen by An Garda Síochána.

Evidence shows that a restorative justice approach can support victims to recover from the impact of a crime, as well as serving to reduce re-offending. This is an integral part of the work of the Probation Service, which established a restorative justice and victim services unit in 2018. Restorative justice programmes are available across the country and at most stages of the criminal justice process. For some lower-tariff offences, it can mean that an offender may be diverted from prosecution, while it comes into play after a conviction for more serious offences. Restorative justice schemes are operated by the Probation Service and through several community-based organisations that receive referrals at specific points in the criminal justice process. Five community-based organisations are currently being funded to provide restorative justice programmes across the country.

The Government has supported the provision of restorative justice in budget 2025, with an additional €4 million for the Probation Service, bringing the total budget to over €60 million. A key role of the Probation Service is to support the expansion of restorative justice and crime diversion programmes, as well as step-down facilities and community-based alternatives to imprisonment.

I will now turn to the amendments that would be introduced by the Bill. As I mentioned, restorative justice in Ireland is provided for in the Criminal Justice (Victims of Crime) Act 2017, with certain tailored provisions for those under 18 in the Children Act 2001. Section 26 of the 2017 Act provides for restorative justice schemes on the basis that an offender acknowledges the basic fact of the offence, that both the victim and the offender provide free and informed consent to a restorative justice agreement and that an agreement between the parties can be taken into account by the courts in any criminal proceedings relating to the offence. This Bill would insert new sections into section 26 to create certain points throughout the criminal justice process where restorative justice schemes must be considered. The courts would be encouraged to refer cases to restorative justice schemes between a charge and a conviction. After a scheme is completed, the courts would choose to resume the proceedings or dismiss the charges, as appropriate. An Garda Síochána and the Director of Public Prosecutions would be given power to refer a broader selection of cases to restorative justice schemes, after a person has been charged and before prosecution begins and to review the decision to prosecute, if appropriate. The adult caution scheme currently operates in this space for summary offences, that is, offences on the minor end of the scale that carry a maximum penalty of 12 months imprisonment. The Bill would also prevent an offender's engagement with a restorative justice provider from being used as evidence of guilt in any later proceedings against them. I will come back to that in a moment.

It is acknowledged that restorative justice is not suitable for every offender or every victim. A broad range of research has identified clear benefits, most notably positive impacts on the re-offending rates of some offenders who in certain cases are provided with an opportunity to make good the harm they have done. The research also shows high satisfaction among victims who take part.

They are given the opportunity to express their feelings and show how the offence has affected them, as well as being able to seek reparation and commitments on future behaviour.

However, while the intention behind the Bill as proposed by the Deputies has merit, the Office of the Attorney General has relayed concerns about a misalignment with the existing policy on restorative justice. The Bill requires that an offender's participation in a restorative justice scheme will be inadmissible as evidence of guilt. This is likely to be problematic in later proceedings where an individual's character is of relevance. If this evidence cannot be used in a court, there is a risk for later criminal proceedings due to fair procedures considerations. The right to a fair hearing is rooted in the Constitution and this includes, among other things, a requirement for the courts to ensure a thorough and impartial examination of all of the available evidence.

While this inadmissibility is similar in character to the inadmissibility of evidence of participation by a child in a youth diversion programme, this is part of the tailored set of criminal justice procedures provided for in the Children Act 2001, in recognition of the specific needs of children. International and domestic law acknowledge the unique developmental needs of children, and the particular benefits a tailored rehabilitative approach has for them.

Restorative justice for children is delivered through the Garda youth diversion programme. A key requirement for inclusion in the diversion programme is the acceptance of responsibility for offending behaviour. Similarly, the 2017 Act requires offenders to acknowledge the basic facts of the offence committed, which presupposes an acceptance of guilt. The 2017 Act further provides that a restorative justice agreement may be considered in any criminal proceedings relating to the offence. In effect, participation in a scheme generally functions to decrease penalties. It is not clear how an amendment that provides for participation not to be used as evidence of guilt could sit comfortably alongside the provisions in the 2017 Act.

The Bill also provides that, without prejudice to any other way of dealing with the case, after an agreement has been reached through restorative justice a court may dismiss the charge on its merits. Dismissing a charge on its merits suggests the fundamental ingredients of the offence are in some way lacking. This is a matter of such importance to the fair administration of justice that it would be addressed by a court in the normal course of proceedings. Restorative justice does not address the offence itself. Instead, it is focused on dealing with the loss, damage and hurt caused to the victim. The existing language in the 2017 Act provides sufficient scope to a court to dismiss a charge and it should not consider reference to a case being dismissed on its merits.

The amended legislation would not provide for restorative justice schemes in circumstances other than those outlined in its provisions. It is not clear whether this would affect the operation of the schemes that take place after a conviction, whether as part of the conditions of a sentence or otherwise. The officials have advised there is a potential overlap between the provisions as drafted and the adult caution scheme, which is operated by An Garda Síochána where a prosecution for a summary of events is not in the public interest. Further consideration is required to parse the overlapping elements and make sure we are not creating space for unintended consequences.

The National Vetting Bureau Acts of 2012 to 2016 provide essential safeguards for the protection of the most vulnerable people in our society. The Acts provide for the vetting of anyone who would have access to children or vulnerable adults as part of their work or in the course of voluntary activities. The Garda National Vetting Bureau consults all of the relevant records available to it to produce a vetting disclosure, and this is used to inform employment decisions. Further consideration is required to ensure that vetting disclosures will not be affected in light of the inadmissibility provision. Our duty to safeguard the safety and welfare of children and vulnerable people is paramount.

The legal advice received from the Office of the Attorney General has also highlighted some issues of a drafting and technical nature. I am satisfied these are not insurmountable and could be satisfactorily addressed. I am pleased to be able to inform the House that work is under way in the Department of Justice, Home Affairs and Migration that will go some way towards addressing the issues the Bill sets out to tackle. In May, the Probation Service published a three-year action plan, Restorative Justice Action Plan 2025 - 2027: Repairing Harm and Empowering Voices through Restorative Justice. This has the objective of increasing restorative justice referrals and interventions by 10% in each year of the plan. The plan aims to increase the availability and access to restorative justice, enhance the effectiveness of probation interventions, reduce recidivism and create a more inclusive society.

Officials in the Department are also considering the outcome of a review of the Criminal Justice (Community Sanctions) Bill 2014, which advocates for the use of community sanctions in their own right as opposed to solely as an alternative to a custodial sentence. This would contribute to reduced reliance on our prison system. The review also seeks to strengthen the suite of restorative justice interventions.

Any change we might make to the administration of justice must fully account for the engagement of constitutional rights and our duty to children and vulnerable people. I thank the Deputies opposite for tabling the Bill. There is a worthwhile objective behind the proposals and, on the basis I have outlined, the Government will not oppose the Bill.

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