Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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53. To ask the Minister for Justice and Equality her views on the Private Members' Bill, Sentencing Council Bill 2015. [42456/15]

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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As the Minister may know, I have published the Sentencing Council Bill 2015. I am seeking for this State to implement a sentencing council, similar to what is in place in England and Wales, where clear sentencing guidelines are issued to the Judiciary based on consultation with the public and key stakeholders to ensure we can have accountability and consistency in the sentences handed out by the Judiciary. Does the Minister support that proposal?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As the Deputy will appreciate, judges are independent in the matter of sentencing, as in other matters concerning the exercise of judicial functions, subject only to the Constitution and the law. In regard to sentencing, the approach of the Oireachtas has generally been to specify in law a maximum penalty for an offence, so that a court, having considered all the circumstances of a case, may impose the appropriate penalty up to that maximum. The court is required to impose a sentence which is proportionate not only to the crime but to the individual offender in that process, identifying where on the sentencing range the particular case should lie and then applying any mitigating factors. An important safeguard rests in the power of the Director of Public Prosecutions.

The superior courts have developed a substantial body of case law setting out general principles of sentencing. Sentencing practice is also being developed by a steering committee of the Judiciary which developed the Irish Sentencing Information System website, a pilot initiative designed to gather information about the range of sentences and other penalties across court jurisdictions. That system is being developed as a valuable tool not only for members of the Judiciary but also for lawyers, researchers and those concerned. I very much support that initiative, led the Judicial Research Office.

The report of the Working Group on the Strategic Review of Penal Policy, which as the Deputy will know I published in July 2014, considered the issue of developing sentencing guidelines. The majority took the view that the primary role of developing sentencing guidelines is the responsibility of the Judiciary and does not lie in bringing forward detailed statutory based guidelines. I recognise that the Deputy has published a Bill on this issue. A sentencing council was not advocated by the Law Reform Commission in its report on mandatory sentencing, which was published in June 2013.

I advise the Deputy about a matter, which is not that well known, namely, that in 2014, the Court of Criminal Appeal issued a number of judgments which addressed the question of sentencing and which acknowledged the many factors that can be considered in individual cases which undermine the usefulness of direct comparisons between one case and another. Nonetheless, every effort to promote consistency should be made and, in that respect, it is appropriate for the courts to consider the provision of guidance on sentencing matters.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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That is a remarkable response. The Minister should think about what a sentencing council is. The majority of members on the sentencing council in England and Wales are members of the judiciary and that protects the independence of the judiciary. They consult the public and stakeholders and issue guidelines so that every judge - in this State that would be the District and Circuit Courts up to the Supreme Court but, in particular, the District and Circuit Courts - is clear that he or she is accountable for the decision he or she makes in regard to the category of offence before him or her. We can think about some of the sentences handed out to people guilty of very grievous sexual offences in this State in recent years and of the insult that was to the victims, first and foremost, and to women who were horrified by what had happened.

The Government has not introduced a judicial council Bill or dealt with the issue of the appointment of members of the Judiciary, even though it has promised to do so time and again. The Minister has said that, in the context of a sentencing council model, the Judiciary is independent. It is calling for a judicial council Bill. The Chief Justice, Ms Susan Denham, has called for it, yet the Government will not introduce it. Clearly, during its five-year term the council has been de-prioritised. The Minister has walked away from accountability for the Judiciary and consistency in sentencing. The response drafted by her officials is a massive disappointment.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Work is ongoing on a judicial council Bill and one of the elements will be to provide a statutory basis for the work I have outlined that is being done by the Irish sentencing information system along these lines. We have not walked away from the Bill on which work is ongoing. I take the Deputy's point that it is an important Bill. I do not agree with his comments on my reply which shows how the Judiciary is addressing this issue in a variety of ways. The Deputy will obviously be aware that the range of criteria to be taken into account in considering a particular sentence varies considerably. He has to acknowledge that no group that has examined this issue in recent times, including those with a lay majority or judicial representatives, has suggested the route he says is an option. I refer, in particular, to the reports on penal policy and law reform. I recognise the fact that he has published a Bill in this regard and that there will be an opportunities to tease out and discuss these issues further, but no report I have received has stated we need a sentencing council. Ireland is different from the United Kingdom in that we have a constitution.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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The Constitution rightly provides for the separation of powers between the Judiciary and the Legislature, but the people are sovereign and their interests are not being served in many of the sentences being handed down in the courts. We need to hold the Judiciary to account. Judges cannot be a law unto themselves; they need to be held to account. In fairness to the Judiciary, the judicial council would be a mechanism to do this. I asked whether the Minster could incorporate a sentencing council into the judicial council, but we do not have even have that Bill before us. It has been another wasted opportunity. We have had another full Government term of almost five years with no reform of the way sentencing is dealt with by the courts or the way judicial appointments are made. Whoever drafted the response talks about the Judiciary being independent. However, judges are also accountable but not according to the Government. We are wrapping up in the House. We have a few more weeks left and will be into an election campaign in the new year. This is a massive failure on the part of the Department and the Government in the past five years. I have put forward a good model that is used in England and Wales and which is democratic, fair and accountable. However, I am being lectured by departmental officials who have utterly failed in their responsibility to reform judicial sentencing and guidelines in the State.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I reiterate that judges are independent. The Deputy has said they must be held accountable, but they are independent; that is the reality. We bring forward legislation that outlines the sentencing we think is appropriate to a variety of crimes. All of the expert information available to me indicates that mandatory sentencing is not the way forward because of that very point. What does consistency in sentencing mean? It is a complex matter and many variables must be taken into account. Where, for example, we, as legislators, believe the appropriate sentence is not in place, it is up to us to legislate. That is what I am doing in the burglaries Bill. I am providing that it will be more difficult to get bail and that consecutive, as opposed to concurrent, sentences should be served. If we do not think the maximum sentence for a crime is appropriate, it is up to us, as legislators, to address that issue. However, it is absolutely clear that the Judiciary is independent.

A judicial council Bill would allow them to deal with complaints effectively and the various elements that will be in it are necessary. We will come to that in due course.