Dáil debates

Tuesday, 30 May 2006

Private Members' Business.

Courts (Register of Sentences) Bill 2006: Second Stage.

7:00 pm

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I move: "That the Bill be now read a Second Time."

I propose to share time with Deputies Durkan, Naughten and English. The purpose of this Bill is to create a comprehensive register of sentences so that sentencing norms can be assessed and to introduce greater transparency in the sentencing process within the criminal justice system. Essentially, therefore, what I propose is the establishment of a nationwide database of criminal sentences. Apart from anything else, last week's Supreme Court decision on under age sex showed the urgent need for such legislation. Following that case, information on all offences of a similar nature was not available. That information should have been available to the Taoiseach, the Minister for Justice, Equality and Law Reform, the Attorney General and legislators. That information should be available at the touch of a button and, if my Bill is accepted, we will establish a database which will prevent a repeat of last week's disturbing situation where, effectively, the Taoiseach did not know the number of sexual offenders who would be released on foot of the Supreme Court ruling on unlawful carnal knowledge.

The effect of this Bill will be to provide a one-stop shop for information on criminal sentences in the Four Courts and otherwise throughout the country and to have that available, ultimately, on-line. The idea is to have long-awaited transparency in the sentencing process which will then allow professionals, the public and policy makers to determine whether criminal sentences are being imposed in a fair and rigorous manner.

The question of the reality and the perception of the situation arises and what is needed is more transparency and openness. The establishment of a national database is the first step in that direction. As far as I and Fine Gael are concerned, we have a number of other proposals in the sentencing area. This is just the first of a number of key measures we want to bring into effect but it is an essential platform upon which many of the other measures will be built.

Last week's case served as a case in point in terms of the need for this kind of register. As the crisis surrounding the Supreme Court judgment on unlawful carnal knowledge unfolded, a shocking loophole in the law was exposed. That loophole related to the need to protect minors from sexual predators. The Fine Gael leader asked the Taoiseach the number of people who were currently in prison under the law that was ruled unconstitutional by the Supreme Court and essentially the Taoiseach could not answer the question——

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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That is right.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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——because the information was not available. He had to refer to the Irish Prison Service which checked records and warrants from the courts and hoped to present a clear picture in due course. My approach is that such information should be available regularly and at the touch of a button and it will be available if the kind of information I want to establish through the database and the register is accepted and put in place.

We are facing a legally anomalous situation now where one serious sexual offender has been released into society and where another six could be released free to re-offend. I understand that count has changed and it is now two. It is essential that we have a central record of sentences and that such information be easily accessible by the Government and the public.

The Fine Gael Bill will create a comprehensive register of sentences that will detail every sentence handed down for any crime committed in Ireland. The database will be invaluable to legal professionals, the Judiciary, who will want to refer to it from the point of view of maintaining consistency in sentencing, something to which I will return, legal researchers, policy makers, academics and legislators in this and the other House. It will also provide the public with a snapshot view of sentencing practices in the courts. That information is available if it can be collated by people in the Civil Service but it is not available generally.

Such a database would include the case number, the offence and its particulars, mitigating factors relied on by the defence, previous convictions, sentencing details including probation Act applications and time already served. There is no need for the names to be included. This is not an effort to load continuing opprobrium on somebody who has served or is in the process of serving a sentence. This can be done without including the names of the persons on the register. The intention is to bring transparency to the process and not to single out individuals. It is on that basis I propose that the Bill be read a Second Time.

On the background to the Bill, at the Fine Gael Ard-Fheis we launched a number of policies in the justice sphere on issues such as bail, home defence and sentencing. The approach is to address the legitimate fears people have regarding the criminal justice system and its ability to protect them in their homes, estates and communities. The Bill I propose is one of several which will introduce sensible and much-needed legislation that will improve the effectiveness, accountability and transparency of our criminal justice system.

Of all the complaints I get about sentencing, the issue of perceived inconsistency is probably the greatest. Fine Gael wants a new approach to sentencing. I emphasise that this approach will respect judicial discretion but it will involve the Members of the Legislature accepting their duty and responsibility to establish and prescribe parameters within which sentences should apply to serious crimes. I am talking about consistency, coherence and appropriate sentences for serious crime.

From that point of view a database and a register of sentences is essential because we cannot build on any platform even to try to establish tariffs for crimes without such a register. I will come to that aspect shortly. Through the mechanism of such a register, sentencing norms can be assessed and trends in sentencing easily identified. I put much emphasis on the issue of greater transparency through the sentencing process within which the criminal justice system should operate. I also put much emphasis on access for all people. Why should the public not have access? They can read about individual decisions in the local and national newspapers but this gives them a microscopic view of the sentencing process. There is no reason they should not have an overall view of the kind of sentences that apply to certain cases.

The Bill I present is important from that point of view. It is reasonable and straightforward and I urge the Government to accept it. It represents a simple change in procedures that will have a positive effect and there is no reason its implementation should be delayed. That is provided for in section 3. Since I will ask the Courts Service to maintain the register, there will be little time to prepare but there should be no continuing delay in the implementation of the register.

The Bill states:

This Act shall come into force on such day as the Minister shall by order appoint, but shall come into force within one year of its passing into law.

The reference is to the Minister for Justice, Equality and Law Reform, whoever he or she may be.

It should not be left on the shelf. Responsibility for maintenance of the register will lie with the Courts Service, which will be obliged to update the register on at least a weekly basis when the courts are sitting. This information is already gathered by the Courts Service and will not involve any significant additional onus on its part. It will simply involve the orderly organisation of the data into one digestible resource.

The register will remain subject to the provisions of the Freedom of Information Acts, but my essential approach is that the register should be a public document as far as possible, so everybody can have easy access to it. Ultimately I would hope to see it available on-line.

In many ways, the register and the information contained on it is already in the public domain, which is right. Under Bunreacht na hÉireann, specifically Article 34.1, it is required that justice be dispensed in public. Although there are clearly some exceptions, sentences are almost always a matter of public record. I emphasise that there is no need for the names of the individuals to be included in the register. The object of the exercise is to bring transparency to the process rather than single out individuals for scrutiny and further public opprobrium.

I propose that the register include the following information in respect of each sentence passed for crimes in Ireland: the case number, proceeding to the offence; the particulars of the offence; any mitigating factors; previous convictions; details of the sentence, including sentences where the Probation Act was applied or no custodial sentence was given; details of the sentences with regard to whether they were consecutive or concurrent; if there were non-custodial elements; if time had already been served and its length; and if early release was granted or if there was any remission of the sentence. This is laid down in the Bill.

The rationale is clear and unambiguous. We must ensure consistency of sentencing. To achieve this we must first understand where the sentencing process is being inconsistent. Anecdotal evidence is not a sufficient basis for any kind of substantial reform, and we cannot expect this House or any legislature to base decisions on the strengths of reports from constituents or correspondence as to what appeared to be enormous discrepancies, however numerous or seemingly common they are. I accept that each case is different, but sometimes the inconsistencies are so enormous that they arouse a reaction among the public. Justice is not being served in that case. Judges will be able to access the register and ensure that such inconsistencies do not arise.

The Bill is self-explanatory. The information should be available to everybody at the touch of a button. Cases such as that which occurred last week would not occur again. In that case, nobody — including the Taoiseach — knew how many people could be released into society arising from a particular court decision, free to offend again. Nobody even knew how many challenges to expect.

This Bill is a base on which I hope to introduce a number of other changes in the sentencing process. I want to see a system of sentencing tariffs introduced. A range should be laid down through this House for serious crime. That is our responsibility. Although I respect judicial discretion, this House also has a responsibility to establish what a crime is in law, and establish in broad terms the type of tariff which would apply if somebody is convicted of a crime.

Judicial discretion will be retained, as it will be a matter for the judge to adopt two courses of action. The judge, on conviction, will apply a sentence within that tariff, depending on the circumstances of a particular case. In exceptional circumstances, the judge will be able to apply a sentence which may be outside the tariff. What I want this House to agree to is that in due course if the judge does this, he or she will explain in open court the reasons for going outside the tariff. That is the minimum the public is entitled to expect.

There are other major issues in the sentencing area which need to be touched upon. We should consider the matter of consecutive and concurrent sentences. In general, we should not have concurrent sentences unless the offences before the court are related to a particular issue or if there is a relationship between the offences. If they are separate offences they must be dealt with separately. It is a matter for the Legislature to establish this.

A further area relating to sentencing which needs to be looked at is the current automatic remission of sentences. A person leaving the Central Criminal Court having received a four-year sentence will arrive in Mountjoy or Portlaoise with his sentence down to three years. That is not the correct way to do business and it is a matter for the Oireachtas to change it. Although I am not against remission, it should be earned.

I accept entirely that remission is a tool that should be used in prisons. The issue of good behaviour arises. I have been made aware of various rehabilitative courses provided for prisoners in prisons, but prisoners do not bother to attend them because there is no incentive to do so. I would have a scenario where remission of sentences would be dependent on prisoners availing of whatever rehabilitative measures were provided in prisons. It all depends on the broad approach to a change in the philosophy of sentencing. This change would involve, in that instance, the requirement that the prisoner co-operate fully with prison authorities, be on good behaviour and, importantly, be prepared to adopt the rehabilitative measures provided for him or her in prison.

We have lost sight of the whole process of rehabilitation. We can just accept the position that prisons are universities of crime, throwing up our hands and locking prisoners up for a certain period before giving them remission so they can come out to commit more crimes. That fight has been given up, and I would like to restore an approach where a significant honest effort would be made so at least some people — young offenders in particular — would be rehabilitated. If this is to be done it will have to operate on a carrot and stick basis. The carrot would be the offer of various rehabilitative courses, educational and otherwise, and the stick would be that a prisoner does not get remission unless an honest effort is made to participate in such courses.

This new approach relating to sentencing is predicated on us knowing, on a general basis, the overall position on the matter. As of now, nobody seems to know, not least the Taoiseach in the Dáil last week, when the crisis on the Supreme Court decision erupted. That is an outrage in a modern society. We demanded action and the Taoiseach was telling us there was no problem, and that nobody was going to walk free. He had no clue and did not know. He should have been able to come into the House armed with information which should have been available from a register system. He could not do so because we have no register. I ask the Government to accept what is a good and necessary idea. It may contain a few technical holes but the Bill has been carefully prepared. It is open to amendment if the Government sees fit but it should be accepted in principle. I do not know if the Government has any ideas left but we certainly have ideas, both as an Opposition and as a future Government, and many are predicated on establishing a register of sentences so I urge the House to accept this Bill.

Photo of Damien EnglishDamien English (Meath, Fine Gael)
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I compliment my colleague, Deputy Jim O'Keeffe, for introducing this Bill. It is a simple and straightforward Bill to which I cannot find any objection, though I have no doubt the Government will find something and will reintroduce it in six months' time under a different name. I ask the Government not to do that because people are questioning the whole justice system this week, especially today. There is an onus on Members of this House to bring clarity to the justice system. What happened today is amazing to the average person and would not occur in another country. The justice system is complicated and difficult for anybody to understand, including those in this House who are responsible for legislation. There is a duty on us to make it as simple and straightforward as possible. This Bill does that by requiring a list of the type and length of sentences handed down for offences without giving names. We live in the information era where people should be able to press a button to access a list of sentences handed down for drug offences, sexual offences etc. People want information but most of all they want a system in which they can have faith. The events of this week and last have eroded that faith and it is up to us to restore it.

This is a simple Bill, a step in the right direction that will make it easier for all of us to follow what happens in the system. It will give us the opportunity to make use of the information to bring about needed changes in sentencing policies. It allows for the recording of information that is easy to follow. As well as Members, the public will be able to see what sentence a criminal convicted of a certain offence can expect to receive and will know if justice is being done. If the public feels justice is not being done, if sentences are too short or too long, members of the public can bring it to our attention.

The Bill will also enable us to follow the progress of a person's sentence and to know when it will end, by providing for a case number in each case. Professionals from the probation service often arrive at a prison only to find the prisoner they wished to visit has been released for no recorded reason. Those people should be able to tap into the information and find out when a person was released. If a prisoner was released early, they should be able to find out why.

Deputy Jim O'Keeffe made an important point about the necessity for a range of tariffs, which we might be able to discuss at a later date. It would give us an idea what each crime warrants by way of a sentence and would create some sort of system. We cannot tell judges what to do but we can give them our opinion and set standards that are easy to follow. A person's address should not decide his or her sentence. Just because a person lives in Cork and faces a particular judge does not mean he or she should get two years less than somebody living in County Meath.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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That is a moot point.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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It is debatable.

Photo of Damien EnglishDamien English (Meath, Fine Gael)
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It depends on what the sentence is for. We will not bring sport into the discussion.

There should be standards that are easy to follow. Victims need to know if justice is being done. The victim of a crime should be able to tap into the system and see the sentences other perpetrators of similar crimes received, so as to determine the norm. The Bill provides for a tool, a register. It represents a chance to order information in a way that is easy to follow. It will enable us to monitor trends and learn from them.

The process of sentencing must be accelerated. Concurrent sentences were discussed earlier. If a person is in prison for a certain offence other charges against him or her should be dealt with during that time, so that when a person completes one sentence they can continue on another. At the moment young people leave prison after a sentence and undergo a rehabilitation programme. They are retrained and placed in work with, for example, the linkage programme. Then they are summoned back to court to face another charge relating to a crime committed some years before, which puts the offender back to square one. All the sentences should be dealt with at once so that only one period of retraining is necessary.

Another area to be considered relates to drugs crimes and the minimum sentence of ten years for dealing in drugs worth more than a certain amount of money. Either it is a mandatory sentence or it is not. Most offenders do not receive ten years but are given two or three. There is no point in our passing legislation if it is not implemented. If ten years is too high a sentence for a drug dealer dealing in drugs worth more than €10,000 we should be told, so that we can change the minimum to five years. Without a register to highlight what is happening we will not be able to make the necessary changes. Such a situation leaves people questioning what we do and how we do it. They believe the system is failing them. After today's events, I do not wonder. Convincing the public that the justice system works properly is a major challenge. This Bill is a small step in the right direction toward tidying up the system. I urge the Government to vote for the Bill and I ask any Deputy who decides not to do so to explain clearly what they find wrong with it. I do not say that just because it is an Opposition Bill.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I support this legislation, proposed by my colleague, Deputy Jim O'Keeffe. It is a timely intervention and a realistic response to some of the things that have happened in recent years. The purposes of the Bill are manifold but it will enable the Oireachtas and the general public to monitor what is happening. Without recognising trends it is impossible to respond as legislators. We in this House have limited access to information but the general public has even less. To monitor progress in this area it is important there be a charter such as provided for in this Bill, whereby a person can look on a list and judge if consistency is being applied, because some consistency is necessary. I mean no disrespect to the legal profession or to the Judiciary but the public is not interested in extenuating circumstances. It sees a murder as a murder, a rape as a rape. I do not say there should be total consistency because some flexibility is required, but people's perception is stark and they expect some consistency.

In the current circumstances we must reassure the general public that we are on their side. The public can receive peculiar messages at times, the current message being that we seem to be unwittingly setting up a charter for perverts. The Taoiseach announced to the House last week there would be no gaping chasm in the legislation allowing the release of a number of serious criminals into the community. I do not know where the problem lies, but the Government should have known what was about to happen because others did. Even as the Taoiseach spoke last week, the case which came before the courts this week was already being prepared. Incidentally, it is astonishing how quickly the case was heard.

I would not be regarded as being on the right wing of the political spectrum in this House but there comes a time when a halt must be called. The House sends a peculiar message when a case can be made to release a person who has illicit sexual relations with a minor in dubious circumstances. The sooner we cop on to ourselves, the better. Deputies, however, are not in a position to respond because legislation is needed. Unfortunately, the Minister and the Taoiseach do not appear to be able to respond either. One way or other, the Oireachtas has overall responsibility in this area and regardless of what happens and under whose watch, someone will be to blame.

Deputies are not over-reacting to the recent Supreme Court decision. The serious problem to which it gave rise was heralded a week or ten days ago. Surely the Attorney General or someone else knew what was about to take place. Did the Attorney General inform the Cabinet as is standard procedure when such matters arise and if not, why not? Was someone trying to embarrass the Government and the Oireachtas? What is the reason for this extraordinary scenario? Members of the public expect Parliament to provide answers. It is no good arguing that this serious matter was well handled in accordance with certain procedures.

We have all had access to information relating to inconsistencies in sentencing, for example, in cases in which severe penalties were imposed for minor offences and vice versa. The public asks how this can be. While the reasons may be complex and the detail intricate, ordinary members of the public will not go behind the scenes or examine the book of evidence to find them. For this reason, a means such as that outlined in the Bill must be found to reassure the Houses of the Oireachtas and members of the public, particularly at a time when the need for reassurance was never greater. Ministers, too, need reassurance because they must know what they are doing.

Photo of Denis NaughtenDenis Naughten (Longford-Roscommon, Fine Gael)
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I compliment Deputy Jim O'Keeffe on bringing before the House this legislation which sets out to introduce greater transparency in the sentencing process in the criminal justice system. As Deputy English noted, it is a simple, straightforward Bill which places a statutory duty on the Courts Service to maintain a register which will show, over time, the sentences handed down by the courts. The monitoring of sentences is critically important. Sentencing policy only comes to public attention when there is an outcry about a person being let off with a lenient sentence. It is vital, therefore, that the Legislature does not respond by taking a sledgehammer to crack a nut, the typical reaction when such controversies arise.

The introduction of a register of sentences would allow trends to be identified over time. In addition, judges who deviate from the median length of sentence should explain in open court the specific reasons for imposing a more lenient or severe sentence than is the norm. This would allow members of the public to inform themselves as to the basis for the judge's decision, which they cannot do at present. Consistency of sentencing is critical.

In this more than in any other week we need reassurance regarding the operation of the courts system. Deputy Jim O'Keeffe proposes the establishment of a national database on criminal sentences which would provide up-to-date information. He highlighted the inadequacies of the current system when he noted that the Taoiseach was unable to answer a question on the number of cases for which last week's Supreme Court decision has implications, information which could only be found by carrying out a trawl of the relevant paperwork.

It is disappointing that, as a result of the Supreme Court decision, the High Court today released an individual convicted in a similar case. As a legislator who has debated many Bills before the House, I found this decision grotesque and gut-wrenching, one which has sickened me to the core. I plead with the Minister of State to ensure emergency legislation is brought through the House this week to remove the loophole created by the Supreme Court decision. While I accept other factors must be taken into account and this is a complex issue which will take time to address, a gaping loophole has been created. If the House must sit on Friday, Saturday, Sunday and Monday to close it, the public will demand that we do so. To maintain public confidence it will be critical that the House does not rise until the issue is finally addressed.

It is a matter of considerable concern that six individuals convicted of the offence of having unlawful carnal knowledge plan to bring cases before the courts and a further seven cases involving the same offence are before the District Courts. I also understand a number of individuals are awaiting sentencing, including one this Thursday, under the legislation struck down by the Supreme Court. The Minister of State, like every Deputy present, will have received telephone calls from members of the public and parents pleading with him to ensure this loophole is closed immediately so that the seven individuals currently before the courts do not get away with abusing children and taking away their innocence.

Deputy Kenny referred to two individuals, Mr. A and Mr. B, the latter of whom is serving four life sentences for having sex with girls aged six, eight and ten years. We cannot allow him to walk free. I plead with the Minister of State to ensure legislation is drafted immediately to prevent such an eventuality.

Deputy Jim O'Keeffe's proposal to introduce a register of sentences is commendable and I hope the Government will support it. This raises another proposal to establish a register of persons considered unsafe to work with children. Legislation to provide for this register is still outstanding and it is critical, particularly in the context of this discussion, that it is introduced immediately. In the United Kingdom, where a register is in place, offenders have gained access to employment in schools. Last year, it was revealed that a convicted sex offender was employed here as a bus driver for special needs children.

The name of the individual whose case was dismissed in the High Court today will not be placed on any register. Moreover, if the six court challenges I mentioned proceed and are successful, the names of the individuals in question will not be placed on a register. It is also possible that the names of seven individuals currently before the District Courts on charges of unlawful carnal knowledge and some of those already convicted and awaiting sentence will not be placed on a register.

In the interests of our children, we must ensure that those individuals do not have access to children. That is another gaping loophole. We do not want a situation whereby some of the anomalies that have occurred in the United Kingdom could happen here. I plead with the Minister of State to expedite that legislation. He should return to the House before the end of this week to ensure that that major loophole is closed. Last week, the Minister for Justice, Equality and Law Reform did not believe there was such a loophole, but it exists and the public wants it to be addressed now.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I welcome the initiation of this Bill as it affords the House an opportunity to debate the subject of sentencing, which is one well worthy of discussion here. I welcome the civilised tone with which the principal Opposition party has introduced the measure. While I would not describe it as a pleasure, I had the experience of listening to the Leader of the Opposition addressing his party's annual conference. I did not detect a similarity between the tone of his address then and what I have heard this evening. It is worthwhile having a debate on this subject. Before I address the merits of the debate, I am glad to see that the principal Opposition party does not simply rely on a base appeal to popular prejudice when engaging in arguments in this House, whatever might happen at their annual conference.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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We do not engage in semantics concerning a serious issue like this one.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Before I examine the Bill and explain the position of the Government on it, I would like to deal with some issues that have been raised in the course of this debate. Deputy English suggested that recent developments in the Supreme Court had eroded the faith of the public in the courts system. Deputy Naughten referred to a loophole which we must reassemble later this week to address.

Photo of Denis NaughtenDenis Naughten (Longford-Roscommon, Fine Gael)
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We should reassemble later this week to address it.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I would like to deal with that point because it is important that the public are not misled by the Deputy on this issue. The position is that the decision that was arrived at today is subject to appeal. Were that decision to stand, however, it would stand only by virtue of the fact that it is an essential and necessary consequence of the Supreme Court decision. It has nothing to do with the deliberations of or advices received by the Government. If persons are instituting cases seeking release from prison on foot of conviction under a section which the Supreme Court has declared unconstitutional, clearly there is nothing these Houses can do about it.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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It is tomorrow's offender we need to guard against.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Allow the Minister of State to continue without interruption. Deputies will have another opportunity to comment.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Deputy Naughten took the latitude of commenting on that issue. It is a serious one because if it is the view that these persons have to be set at liberty, it is because the Supreme Court has decided that the section of this Act became spent in 1937. It did not become spent at a Government meeting last week or in a statement made on the Order of Business by the Taoiseach this afternoon.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Yes, but the Supreme Court decided it last week.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The Supreme Court made a decision last week and we have to address its consequences. Under our Constitution, we cannot retroactively declare conduct to be offences which were not offences at the time of their commission.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The Minister of State can restate the conduct for an offence that might happen tomorrow, however.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Please allow the Minister of State to continue. Deputy Howlin will have an opportunity to speak later.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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All that remains for us to do is to provide a sound legislative framework in this area for the future. I have no doubt that the Government and the House will express their views on that in due course.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Does that mean we will let out people who are already in prison?

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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As regards the cases that are already in the courts system——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Government cannot agree.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I ask Deputies to allow the Minister of State to continue. If Deputies want to have a serious debate on this issue, they should listen to what he has to say. They will have another opportunity to comment on it.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Deputies are well aware of the fact that the trial, conviction and punishment of criminal matters are exclusively reserved for the courts. They are not matters in which we can interfere.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Correct.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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So there is no point in demanding emergency sessions to plug loopholes that we do not have power to plug.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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We cannot be seen to be open to ridicule outside.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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There are important issues we can address, however, and the Taoiseach has made it quite clear that he is prepared to recall the House to address them.

I want to refer to the question of registers of offenders, which Deputy Naughten understandably and rightly raised. In truth, there is no register of offenders as such in this State. There are two distinct and very different processes. One relates to sex offenders and allows such offenders to be put on a register for the purposes of supervision by the probation service after their release from custody for a defined period. The other issue is the accessibility of Garda criminal records for checking purposes for employers who wish to engage persons who have substantial exposure to children in their employment. I will have the pleasure of opening the Garda central vetting unit in Thurles in a few weeks' time. A planned extension of the unit is under way.

A third issue rightly raised by Deputy Naughten concerned the question of more general legislation dealing with a register of persons unsafe to work with children. A few weeks ago, a Government decision asked me to process this legislation which will be done on a North-South basis.

As regards the subject of the Bill, I regret to have to advise Deputy Jim O'Keeffe that the Government takes the view that the legislation is premature——

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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If that is premature, I would hate to think of anything else that might be.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It will have to await the change of Government, obviously.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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——pending the outcome of work which has been undertaken by a working group established by the board of the Courts Service on sentencing.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Minister of State, without interruption.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The Bill has two functions, first, to create a comprehensive register of sentences; and, second, to introduce greater transparency to the sentencing process within the criminal justice system. I certainly agree that these are worthy objectives. The Bill details the information that would be required in the register, which would be subject to the Freedom of Information Acts. It also provides that certain designated persons and organisations would have access, by right, to the register. The courts service would be obliged to maintain the register.

I note Deputy Jim O'Keeffe introduced the Bill on the basis that the identity of the offender would be concealed in this particular exercise. I agree with him that there is a need for more data on sentencing, both for use by the Judiciary themselves, as he advocated, and for the purposes of public oversight. The Minister is not convinced that a register, as proposed on these lines, is the way to do it. The courts service has advised the Minister that a proposal on the lines suggested by the Deputy would present significant logistical and resource problems.

The information required under this Bill would be extremely difficult for the courts service to collate and maintain. It would be a huge undertaking for the Courts Service to collect this level of detail and a vast drain on staff resources, while other elements of the register are simply not within the remit of the Courts Service.

The register envisaged by the Bill would require details of each and every sentence. This would include cases which had been held in camera, the details of which cannot be made public by law. In practical terms, this means that details of almost all criminal cases would have to be maintained, including details which the Courts Service does not have. For example, the mitigating factors taken into consideration in determining sentence are not available, other than from a recorded transcript of the proceedings. Such records of transcripts are only prepared in the event of an appeal to the Court of Criminal Appeal. There is no transcript of District Court proceedings so the requirement suggested in the legislation that the mitigating factors should be part of the public record would be impossible to implement. This level of detail would mean a huge increase in the amount of manual compilation of information. The criminal case tracking system maintained by the District Court does not contain anything like this amount of detail.

The Courts Service does record the outcome of each case brought before the courts. The service does not record the reasons for the sentence because it very seldom knows them. It does not record any background details, such as mitigating factors taken into consideration or the person's previous convictions. These may form part of the defence presented in court and may or may not be factors taken into account by the judge in determining sentence.

The accused or, indeed, counsel on his or her behalf might raise a myriad of groundless arguments in mitigation. To keep a record of all such information would be a fruitless exercise at the expense of the public purse. Other details suggested in the register, such as how much time had already been served by the accused, the length of time served by the accused, the executed elements of any non-custodial elements of the sentence, the granting of early release and the remitted portion of a sentence, are not available to the Courts Service. This information is available to other agencies such as the Prison Service and the Garda Síochána.

Turning to the sections proposed, section 4 provides that the register shall hold certain information pertaining to each and every sentence handed down in Ireland. It is simply not practical nor feasible to record all the details set out in the Bill. Section 4(2)(d), dealing with recording any mitigating factors, goes too far in suggesting that the sentencing judge may not take any mitigating factors into account in imposing sentence. Section 4(2)(g)(iii) deals with the amount of time served. Time served is usually taken into account but warrants only specify date from which sentence is to run. Section 4(2)(g)(iv) deals with the length of time served. This information is not necessarily known to the court as the accused may have been on bail for all or part of the remand period. Section 4(2)(g)(vi) deals with whether early release was granted. This information would not be known to the Courts Service. Section 5(1) states that maintenance of the register shall be the responsibility of the service but the Minister is advised that it would be more practicable to keep a separate register in each court. Section 6(2) states that the register shall be publicly available. However, if the register is to be publicly available, section 6(2), outlining what class of persons would have a statutory right of access to the register, would appear to be redundant.

I appreciate that Deputy Jim O'Keeffe may maintain that these are essentially Committee Stage points but so many debilities are identified in the Bill that surely they invalidate the purpose of giving it a second reading.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I am open to amendment. It is not a problem.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Looking at the bigger picture, we all agree that few aspects of our criminal justice system generate as much controversy as the sentences handed down by our courts. From time to time there are cases which attract particular public attention which result in sentences which may be generally regarded as too harsh or too lenient or as inconsistent with sentences given in what are regarded as similar cases.

The traditional approach to sentencing in the Houses of the Oireachtas has been to lay down by statute a maximum penalty. The court, having considered all the circumstances of the case, may then impose an appropriate penalty up to that maximum. This approach reflects the doctrine of the separation of powers. The Legislature lays down the possible punishment range but it is for the courts to decide the punishment, taking account of all the circumstances of the case and of the offender.

I doubt if any person would like to see a system of criminal justice where all sentencing is determined by preordained mandatory tariffs or where sentences are influenced by the hue and cry of public comment. That is not to suggest that there should not be systems and procedures to ensure that sentences handed down by our courts are generally seen as and believed to be fair, predictable and consistent. In that respect, the Minister supports the overall aim of Deputy Jim O'Keeffe's Bill.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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That is good.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Sentencing is a complex matter and, as the Deputy is aware, there are many variable factors to be taken into account in each case. To address this issue, the board of the Courts Service established a steering committee in October 2004 to plan for and provide a system of information on sentencing. The initiative of the board is designed to provide some systemic form of information as a reference point for judges. The terms of reference are to plan for and provide information on sentencing. I am sure Deputy Jim O'Keeffe is glad to learn work is under way to meet the objective.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Is the steering committee separate from the working group?

8:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The membership of the committee comprises Mrs. Justice Susan Denham as chairperson, Mr. Justice Kevin O'Higgins, Mr. Justice Esmond Smyth, Judge Miriam Malone, President of the District Court, and Professor Tom O'Malley.

The steering committee reviewed sentencing systems worldwide and identified those of Scotland and New South Wales as the most relevant to our situation. Professor Cyrus Tata, director of the Centre for Sentencing Research at Glasgow, made a presentation to the committee on the sentencing system which has been operating in the Scottish High Court for the past decade. Professor Tata played a leading role in the development of the Scottish sentencing information system.

The committee decided to establish a pilot project in the Circuit Court in Dublin. Two researchers have been selected to collect and collate information on sentencing outcomes in cases on indictment in designated courts in accordance with criteria specified by the committee. The objectives of the project are to identify criteria and other information employed by the Judiciary in sentencing for particular offence types in criminal proceedings; record and retrieve such information in individual cases; design and develop a database to store the information retrieved and enable its retrieval in accordance with various search criteria; share or disseminate the information, utilising information and communications technology, via a judicial intranet or other means; and assemble appropriate material on sentencing for a benchbook and website.

Briefing meetings to explain the project have been held with the judges of the Dublin Circuit Criminal Court and court registrars who will be involved in the initial phase of the pilot project. It is proposed to commence a pilot project shortly in the Dublin Circuit Criminal Court. It is anticipated that this project will run for a six-week period and that it will be evaluated prior to a further pilot in October 2006 in the Circuit Criminal Court. Work will also commence on an information system on the Court of Criminal Appeal.

Apart from the pilot project, one must not ignore the current position which is that the law enables judges to exercise their discretion, within the maximum penalty, by reference to the conclusions they reach after trying a case, hearing all the evidence and assessing the culpability and circumstances of the accused. Judges, on appointment, have a wide knowledge of the law and its application and bring to the bench their experience and training as legal practitioners. The Minister is reluctant to depart from this approach but there are exceptions, especially in the case of murder where there is a mandatory sentence of life imprisonment.

With regard to the Minister's proposals on sentencing, the House may be aware that he is proposing the introduction of new statutory sentencing powers by way of Committee Stage amendments to the Criminal Justice Bill 2004. In general, the proposals will provide a wider range of sentencing options to the courts, including alternatives to custodial sentences. The first of these will give a court power to suspend or partially suspend sentences subject to certain conditions. The purpose is to provide an incentive to offenders to deal with issues giving rise to the offence and to stay away from crime. The conditions include a condition that the person keeps the peace and is of good behaviour during the period of imprisonment and during the period of suspension. The court may also make its order subject to such other conditions. For example, an order may include a condition that the person undergoes substance abuse treatment or psychological counselling or other treatment, or that the person co-operates with the probation and welfare service for the purposes of his or her rehabilitation and the protection of the public.

Deputy Jim O'Keeffe touched on this issue in his contribution. I agree with him that the giving of rehabilitative options to the courts which can be implemented in the context of sentencing is an important issue.

The Minister also proposes that the courts can, in certain circumstances, impose a fine but defer the custodial sentence pending an assessment of the offender's behaviour during the period of deferment. The court may defer sentence for a period of not more than six months. The court may make the deferment subject to such conditions as the court deems appropriate, including a condition that the offender be of good behaviour and keep the peace. Before making such an order the court must be satisfied that a number of requirements have been met, including that the offender consents to the deferral of the sentence of imprisonment and that the offender undertakes to comply during the period of deferral with any conditions as to his or her conduct which the court specifies.

In commenting on this area, Deputy Jim O'Keeffe made the point that he would like to see the area of rehabilitation on the part of the offender factored into the issue of parole when a sentence of imprisonment is imposed. In fact, the question of the issue of remission can only arise in two circumstances. One of these is in the context of the administration of the prison system itself in that the prison authorities, if satisfied with the good conduct of the offender while a prisoner, can recommend and attach to the prisoner a designated period of one quarter remission. In more serious cases involving a longer sentence, the parole board advises the Minister whether there should be remission. These are delicate and difficult decisions. I know the Minister values the existing procedure which enables him to be guided by advice from the parole board.

It is also intended to give the courts the power to impose restriction of movement and electronic monitoring orders instead of imprisonment for certain offences. This is a matter on which the leader of the principal Opposition party, Deputy Kenny, caused a frisson of excitement at the annual conference but it is in fact envisaged in legislation before the House. The power to impose restriction of movement and electronic monitoring orders is intended to be conferred upon the courts under the Criminal Justice Bill.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Not for those released on bail, the area to which we want to extend monitoring.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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They are very dangerous people. It is proposed the orders will be available in circumstances where the offence is a scheduled offence——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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We need to be intent on dealing with these people in a proper manner.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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It cannot get any worse — cloudless days without tall buildings and no trees the Minister told the committee. It was a sunny day in the midlands.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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——certain lesser offences under public order legislation and the Non-Fatal Offences Against the Person Act 1997, and the court considers it appropriate to impose a sentence of three months or more. A restriction of movement order may impose such restrictions as the court thinks fit including a requirement that the offender be in a specified place at a certain time. The period for which an order may be in force may not exceed six months. The court can impose a restriction of movement order and it can also impose, for the purpose of monitoring compliance with a restriction of movement order, an order for the electronic monitoring of the offender in the community. A court can only make an order for electronic monitoring if the convicted person consents to the order being made and consents to the attachment of the electronic monitoring device to his or her person.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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There are no tall trees or tall buildings.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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ln this regard, the Minister is also providing that the granting of temporary release from prison can be subject to the restriction of movement and electronic monitoring.

As I mentioned earlier, the traditional approach to sentencing is for the Oireachtas to lay down by law the maximum penalty appropriate to a particular offence and for the courts, having considered all the circumstances of a case, to impose an appropriate penalty up to that maximum. There are a small number of circumstances where statute has intervened to create exceptions to this approach. One such provision is the mandatory sentencing provision contained in the Misuse of Drugs Act 1977, as inserted by section 5 of the Criminal Justice Act 1999, in respect of an offence related to the possession of drugs with a value of €13,000 or more for the purpose of unlawful sale or supply. The provision provides for a mandatory minimum sentence of ten years' imprisonment for the offence unless exceptional and specific circumstances exist in regard to the offence or the offender which would make it unjust in all the circumstances to impose a sentence of not less than ten years. Factors to which the court may have regard include whether the person pleaded guilty, taking account of the stage at which such an intention was indicated and the circumstances surrounding the indication, and whether the person materially assisted the investigation of the offence.

It is well known that the Minister has in the past been critical of the extent to which the mandatory sentence of ten years has been availed of by the courts. The Minister and I believe that the increasingly adverse impact of certain offences, such as serious drug offences, on our communities, merit the Oireachtas providing sentencing guidelines to the courts to the effect that a specified minimum sentence should be imposed unless to do so would be unjust in all the circumstances. In the circumstances, a number of amendments have been brought forward to the provisions contained in the 1999 Act by way of Committee Stage amendments to the Criminal Justice Bill 2004. It is intended to provide that when considering whether the imposition of a mandatory minimum sentence would be unjust the courts may not only have regard as at present to certain mitigating factors such as the stage at which the offender pleaded guilty and whether the offender materially assisted in the investigation, but also to the public interest in preventing these offences and to whether the offender has been previously convicted in respect of these offences.

Neither I nor the Minister consider that the Judiciary can be said to be pursuing an excessively lenient sentencing policy. While this may be the public perception based on a small number of cases which may be the subject of public criticism, we do not believe this perception reflects reality. It is worth quoting the observations of the Court of Criminal Appeal in the case of Director of Public Prosecutions v. R., 2001:

Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the seriousness of the offence may be obtained from the maximum penalty imposed for its commission. . .

What is even more instructive is legislation which, as in the present case, fixes a mandatory minimum sentence. Even though that sentence may not be applicable in a particular case the very existence of a lengthy mandatory minimum sentence is an important guide to the courts in determining the gravity of the offence and the appropriate sentence to impose for its commission...

If the court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed.

Those are the views of the Court of Criminal Appeal.

The Committee Stage amendments to the Criminal Justice Bill also include provisions which will add to the statutory exceptions providing for mandatory sentences. The proposals include a new offence of importation of drugs to the value of €13,000 or more which will attract the ten year mandatory minimum sentence and provision for mandatory minimum sentences of between five and ten years for certain firearm offences.

Provision is also included in the Criminal Justice Bill 2004 for the introduction of a fixed charge procedure for certain public order offences. Section 29 of that Bill amends the Criminal Justice (Public Order) Act 1994 to provide for a fixed penalty procedure for certain public order offences under that Act. The procedure will apply to an offence under section 4, intoxication in public place, and section 5, disorderly conduct in a public place. It is intended the fixed penalty procedure will be an alternative to criminal proceedings being taken in the first instance.

ln general, the section provides that a member of the Garda Síochána, who has reasonable grounds for believing that a person who is not less than 18 years of age is committing, or has committed, an offence under these sections of the 1994 Act, may serve on the person personally or by post a fixed charge notice. ln default of payment the person will be prosecuted for the offence.

The fixed charge notice will be in a prescribed form and will state specified matters including when and where the fixed charge offence was alleged to have been committed, that a prosecution for it will not be instituted if within 28 days the person pays the prescribed amount and how the payment may be made. Various consequential provisions deal with the ancillary regulations.

The complex question of sentencing policy was addressed at length by the Law Reform Commission in 1996 in a report which specifically recommended against the introduction of statutory sentencing guidelines. Its report pointed out a number of differences of opinion among members of the commission in relation to some of the recommendations in the report which tends to underline the obvious complexities which arise in sentencing policy.

The Minister supports the recommendation made by the Law Reform Commission against the introduction of statutory sentencing guidelines.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Statutory or non-statutory guidelines.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Or Ard-Fheis guidelines.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Is he in favour of guidelines?

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Statutory guidelines would involve an undue interference in the independence of the Judiciary. The decision on what kind of sentence to impose is a judicial determination, not an Ard-Fheis determination——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Whoever wrote this waffle wandered all over the place.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The Deputy should have no fear. Servants of the State were not required to compile the entirety of this script. The decision on what kind of sentence to impose is a judicial determination and, save only in exceptional circumstances, I hold the view that the Oireachtas should be cautious in prescribing mandatory sentences.

Deputy Jim O'Keeffe is no doubt aware that the Law Reform Commission opposed the idea of statutory guidelines. It is useful to consider what the commission said about non-statutory guidelines. The commission recommended that non-statutory guidelines should be introduced to the effect that the severity of the sentence to be imposed on a person found guilty of an offence should be measured in proportion to the seriousness of the offending behaviour and that the seriousness of the offending behaviour should be measured by reference to the harm caused or risked by the offender in committing the offence and the culpability of the offender in committing the offence.

This comes back to the basic position whereby the law enables the judge to exercise his or her discretion, within the maximum penalty, by reference to the conclusions he or she has reached after trying the case, hearing all the evidence and assessing the culpability and circumstances of the accused. In general, the Minister concurs with the thinking behind these recommendations on statutory guidelines. The point was made in the commission's report that the more detailed the requirements of any statutory sentencing procedure, the more likely it was that mistakes would arise leaving sentences open to challenge on technical grounds only.

While the working group on the jurisdiction of the courts was unable to examine the issue in sufficient depth to make detailed recommendations, it found there was a need for some system of objective guidance for sentencing judges at all levels. One option proposed by the working group could be accommodated within the current system——

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Is this another working group?

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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——the more effective dissemination of decisions which are regarded as being authoritative in nature, especially decisions of the Court of Criminal Appeal. I understand the Courts Service and Supreme Court Judiciary are operating a pilot database of judgments of the Supreme Court and Court of Criminal Appeal which has been launched on the Courts Service website along with High Court judgments.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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That is very nice; strange thinking.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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Perhaps they could be displayed at the Fine Gael Ard-Fheis rather than the extensive reviews and sentencing promises of Deputy Kenny.

As I mentioned earlier, the steering committee, in reviewing sentencing systems, worldwide identified those of Scotland and New South Wales as the most relevant to our situation. In this regard, New South Wales has a judicial commission whose major function is to assist the courts in achieving consistency in approach in the sentencing of offenders.

Over the years, the courts have developed a substantial body of case law setting out general principles of sentencing. Statute law provides that any sentence of imprisonment for an offence committed while on bail should be ordered to run consecutively to any previous sentence. The courts are in the best position to see just what is the proper sentence in a particular case.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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They are operating in the dark.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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They alone can take all the circumstances in a particular case into account and the Courts Service board has put in place a highly skilled committee to look at sentencing. If Deputy Jim O'Keeffe examines the impressive membership of this committee, he will agree the Minister should await the conclusion of its work before coming to decisions on the issue which is the subject matter of Deputy Jim O'Keeffe's Bill.

Photo of Joan BurtonJoan Burton (Dublin West, Labour)
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I wish to share time with my colleagues, Deputies Howlin and Penrose. I congratulate Fine Gael on introducing this Bill. I am delighted the Minister of State with responsibility for children is present because I have some questions for him.

I heard the Minister for Justice, Equality and Law Reform speak at some length about the development of a statutory sentencing policy. Following today's events, could the Minister of State, or his senior colleague, the Minister for Justice, Equality and Law Reform when he is next in the Chamber, please explain to me and to other parents how a man who raped a 12 year old child, having plied her with drink, ended up with a sentence of three years for statutory rape? I have heard this question repeatedly today. I am not a lawyer but we have been told by the Taoiseach that such offences carry substantial sentences up to life imprisonment.

I want to bring to the attention of the Minister for Justice, Equality and Law Reform an article by Mr. Kieron Wood, a well known legal journalist, commenting on the issues in one of the weekend papers. The article includes quotes from an interview which the Minister gave to Pat Kenny to a few days ago on RTE. He expressed the view that no appalling vista arose from the Supreme Court judgment.

The Minister made some very strange statements which, if they accurately reflect what he is reported in the newspapers as having said, should be explained by him to interested parents. He said:

We must also ask ourselves if we have to protect 15 year olds from randy 23 year olds, if I can use that phrase. It is not an easy one to legislate for on the back of a beer mat.

The Minister said his view was that the notion that 16 year olds could be criminalised and theoretically face prison and so on for having sexual intercourse was no longer sustainable in this day and age.

The quotes are from a long interview. They are attributed to the Minister and I do not know if they are correct. However, I do not understand the following. The Supreme Court delivered a judgment the other day which changed the law as people understood it. The Labour Party has offered a temporary measure to plug the gap. As the Minister said in the interview that this is a complex issue. He said that if one is talking of a 24 year old man and a 12 year old girl or whatever, especially if there is a question of them being related, that is not a runner, if one can imagine.

There is a very clear division between the Government parties on this issue. The remarks attributed to the Minister for Justice, Equality and Law Reform are from what I think is called in American jurisprudence a libertarian point of view. The Minister is an esteemed lawyer, but if that is the Progressive Democrats libertarian view, what is the Fianna Fáil view with regard to the protection of children and the very difficult issue of seeking to protect children, because young teenagers are still children? We know some 13 year olds can be quite advanced but most of them cannot safely undertake sexual adventures and emerge the better for them.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The problem with the narrow approach mentioned by the Deputy is that it does not address the issue of the protection of young men as well as young women.

Photo of Joan BurtonJoan Burton (Dublin West, Labour)
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I accept that when the law is revised, there will be gender issues to address which did not exist in the 1930s. I do not think there is any disagreement about that on this side of the House——

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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It could pose constitutional problems.

Photo of Joan BurtonJoan Burton (Dublin West, Labour)
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——or with the fact that, from time to time, a woman may be involved in completely wrong sexual conduct with an under age boy, or that men may have completely inappropriate conduct towards young boys. We all know that. We live in the 21st century and must legislate for it. To me, the views expressed by the Minister for Justice, Equality and Law Reform are profoundly libertarian. They do not necessarily reflect the kind of views I would have expected from Fianna Fáil.

I want to raise a local matter I have raised several times before. Bus Éireann uses taxi drivers to provide school transport for special needs children. Those taxi drivers employed by Bus Éireann are not subject to any vetting. The children are on their own in taxis.

I have another issue to raise with the Minister of State. Mr. A could be driving a taxi tomorrow while Mr. B and Mr. C could be driving school buses next week. I hope the Minister understands that people feel very vulnerable as a consequence of what has emerged.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I have secured the agreement of the Department of Education and Science in excluding all those categories of persons from that area.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I am sorry the Minister of State is abandoning ship although I am sure he must attend other business.

I welcome the Bill and the debate on sentencing on what is a bleak day for the criminal justice system in Ireland. Families and individuals throughout our State despair at the failures that led to the release of a convicted child predator this day. My colleague has already pointed to the fact that people will already be in despair that somebody guilty of such a heinous crime, plying a young child of 12 with drink and then predating on that child to have a sexual relationship with her, ended up with a sentence of three years. That will surprise many people. The notion is objectionable that that individual, in the eyes of the law, has committed no offence, walks free, is not subject to any account and is not on any register. The matter is being appealed but it beggars belief that amending legislation was not ready in the event of the Supreme Court reaching the conclusion it did.

All this provides us in this House with a number of cautionary tales. One is that we take great care in how we handle criminal legislation. Bluntly, the Criminal Justice Bill now trundling through Committee Stage is not being handled with care. The Minister for Justice, Equality and Law Reform has already instanced that one of the proposals among the 220 pages of amendments was that there would be mandatory sentences for the possession of drugs in excess of the old value of £10,000, now some €13,000. However, in the new legislation, it is not a defence that one does not know what the drugs are worth. That is surely now frail and suspect in the same way as the 1935 Act because one must be able to present that defence. We need the time to ensure we do not have more dark days like today with criminals walking free because we were not robust in carrying out our constitutional duties to enact proper legislation to protect the citizens of the State.

This Bill is worthy and important, particularly its proposal to have a central and accessible register of sentences. To have such a database would be invaluable. It is depressing to see the knee-jerk reaction from the Minister of State. It was clear he had not read his speech before he attended the Chamber. He smiled as he read, "I am opposing the Bill on behalf of the Government on the basis it would be premature". Again another working group will be reporting to a steering committee or another pilot scheme is in place. It is always a step away from a decision in any area, which I regret.

The main issues of concern among the public are the need for effective policing and the inconsistency of sentencing practices where the punishment does not always fit the crime. In some instances lawyers will say there is fishing for certain judges. This must stop. Public faith in the judicial system and the criminal justice system must be restored. The tariffs that accrue to a particular offence should be standard. I accept no case is the same. A separation of powers exists that allows the courts to interpret the law to determine appropriate sentences that match individual cases. There cannot, however, be vast disparities when the outline shapes of two separate cases are the same.

Many years ago, when I last held this spokesmanship, there was a debate on training, accountability, structured peer review with organised discussion and specialisation in the Judiciary. All this now happens on an ad hoc basis. During the debate, the proposals were to be put by constitutional amendment. I argued against the then Minister's proposals. The mechanism he proposed for disciplining a judge would have made it even more difficult to remove a judge from office. A simple majority of the House enacts a law and elects a Taoiseach. The then Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, proposed the removal of a judge would require a two thirds majority of the House. It struck me as a move in the wrong direction. We did not take advantage of the debate to put in place a structure for judicial conduct. We are now in a situation on such matters where we have no structure. Instead we are inventing structure with the help of the Supreme Court to map our way through a minefield which we should have done many years ago. The promised return to judicial accountability never happened.

Under the Bill the Courts Service would have a duty to bring into being and maintain a comprehensive database of sentencing. The service has done sterling work since it was put in place. It has reformed the facilities available to the courts system in many places. I will be parochial in saying that one of the gaping holes of its infrastructure is the Wexford courts building. I hope the promised new courts building there will come on-stream soon. By and large, the service provides good facilities with good case and document management. It would be well able to carry out the duties, given the resources, laid out in the Bill.

The database would do much good. It would aid judges by providing information on indicative sentencing which they could examine and know whether the norms they propose to apply are correct. It would be proper information that would restore public confidence in that the public could see what is happening in sentencing. It would provide information for us as law-makers to know how legislation is being enacted. Several years ago mandatory sentencing of a minimum of ten years was introduced for drug importation. Up to two years ago in over 90% of all cases, the mandatory sentence was not applied. It was only applied in 2% of cases which I understand has increased to 20%. However, it remains that in the majority of cases, the decision of the House on mandatory sentencing is not applied. The House must know these facts. Such a database would aid researchers in being able to compare Irish norms to international practice. It is a pity that good ideas from this side of the House are ignored.

Photo of Willie PenroseWillie Penrose (Westmeath, Labour)
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The Bill's provision for a database would provide a useful and valuable tool. As Deputy Howlin outlined, it would have several important uses, not least in its use in the sphere of judicial training. Information for judges could be dissipated from the High Court to the District Courts. It is important the public has confidence in judicial sentencing. I have deep reservations about mandatory sentencing or tariffs. As one practising in criminal law, no two cases I have encountered are the same. Neither can we make laws in response to frenzies or outcries. It must always be ensured that the law is consistent with the Constitution. It must be tested in a cool and rational atmosphere to ensure it withstands the attacks to which it may well be subject. These are the protections we have and why the separation of powers exists.

I accept mandatory sentencing for murder and various serious crimes. For lesser crimes, if a minimum sentence of five years were imposed, we would be flying in the face of the diktat which has been provided by the courts. The Court of Criminal Appeal has set out various indicia to which we and the lower courts must adhere. It always takes account of the nature and circumstances of the crime and the individual that committed it. Those matters have to be balanced when it comes to sentencing.

One problem with Deputy Jim O'Keeffe's Bill is that in mitigation, often when the defence counsel makes a plea, the judge considers it from the societal point of view taking into account the sentence acting as a deterrent and retribution. The judge then must consider the personal circumstances of the individual who committed the crime and his or her rehabilitation, the light at the end of the tunnel. We cannot just throw way the key or just put people into prison for the sake of it. Often people come out of prison with greater degrees of knowledge in how to pursue more vicious crimes than the one for which they were originally sentenced.

The failure to have a properly resourced rehabilitation system in the prison system is an absolute scandal. Society must be protected from the dangers of the particular crimes committed by individuals through the deterrence aspect of sentencing. However, since the 1970s the Supreme Court has laid down that there must be a rehabilitation aspect to sentencing. In this the State has failed miserably. The rehabilitation resources in the prison system are non-existent. I have known of individuals entering prison with psychiatric problems. Very often the psychiatrist is operating on already tight resources. This area must be focused on in the debate on sentencing. The points made by Deputies Jim O'Keeffe and Howlin are worthy of debate and should not be lightly dismissed.