Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I move: "That the Bill be now read a Second Time."

I am very pleased to have this opportunity to introduce the Criminal Justice (Suspended Sentences of Imprisonment) Bill 2016. It is a relatively short and technical Bill but it is also important. The Bill's primary purpose is to address Mr. Justice Moriarty’s High Court judgment of 19 April last which found certain provisions of section 99 of the Criminal Justice Act 2006 to be unconstitutional. That section provides for the suspension and subsequent revocation of prison sentences.

The Bill was initiated in the Seanad and completed its passage through that House on 30 November. I am pleased to say that it received general support there with the need to remedy the legislative deficiency broadly recognised by Senators. Suspended sentences are an integral part of the judicial sentencing regime, indeed of the criminal justice system in general. They can be used as an alternative to the imposition of a custodial sentence where the court considers that the person might benefit from a second chance and that justice might be better served with the imposition of a suspended sentence. Suspended sentences are a valuable sentencing mechanism for the courts. They are a deterrent to the commission of further offences since the threat of the original prison sentence remains. A suspended sentence is imposed for a certain time period and is subject to a number of conditions. The primary condition is that the person must keep the peace and be of good behaviour. A breach of this condition can result in automatic revocation of the suspended sentence.

The statutory regime for the imposition and revocation - essentially, the activation of suspended sentences - is provided for in section 99 of the Criminal Justice Act 2006. The High Court has, however, found certain provisions of section 99 - subsections (9) and (10) - to be unconstitutional and these provisions have been struck down. These subsections provide that a person who is subject to a suspended sentence and subsequently convicted of another offence is, before sentencing for that subsequent offence, automatically returned to the court which made the order imposing the suspended sentence for revocation of that order. The difficulty identified by the High Court Is that the person concerned does not have the opportunity to appeal the second triggering offence before the case is referred back to the revocation court, resulting in differing treatment so far as the rights of appeal are concerned. This means that a person could serve some or all of a revoked suspended sentence because of a second offence, the conviction for which may be quashed on appeal. It is necessary, therefore, to amend the legislation to provide that an appeal may be taken in relation to a second, triggering offence, before revocation of the suspended sentence is considered by the revocation court.

An alternative mechanism provided for by subsections (13) and (14) of the 2006 Act is currently being used on a case-by-case basis, pending enactment of this amending legislation, which will restore the automatic court-driven revocation process. These alternative provisions allow a member of the Garda Síochána, the governor of a prison or a probation officer to apply to the court for a hearing to revoke a suspended sentence where a breach of its terms has occurred. While this alternative mechanism ensures that suspended sentences may still be revoked, it is important from a procedural point of view that the provisions which have been found to be unconstitutional should be revised and replaced so that the system of automatic revocation of suspended sentences can be restored. The implications of the High Court judgment were considered in consultation with the Attorney General and this amending legislation was prepared in order to address the particular difficulty identified so that procedures relating to suspended sentences can operate as efficiently and effectively as possible. The Bill also deals with a number of related matters.

I will now outline the different sections of the Bill. Section 2 provides for amendments to section 99, dealing with the power to suspend sentences, of the Criminal Justice Act 2006. Section 2(c) provides for the insertion of various subsections to replace the subsections that were struck down. The new subsection (8A) provides that where a person commits an offence, referred to as a "triggering offence", during the period of a suspended sentence and is subsequently convicted of that offence, the court concerned will, after imposing sentence for the triggering offence, remand the person in custody or on bail to a sitting of the court that imposed the suspended sentence no later than 15 days after the remand, or where there is no silting of that court within the 15-day period, to the next sitting of that court. If, for whatever reason, the court to which the remand is made does not sit on the date of remand, the person will be remanded to the next sitting of the court held after that day. This provision ensures that a person will be remanded as soon as possible, once sentence for the triggering offence has been imposed, to the revocation court to have the matter of the suspended sentence dealt with. Subsection (8B) clarifies that the remand process provided for in subsection (8A) applies following conviction for a triggering offence once proceedings are instituted against the person concerned within a reasonable timeframe following commission of the offence.

I take this opportunity to outline the most significant differences between subsection 99(9) of the 2006 Act and the revised subsections (8A) and (8B), as inserted by section 2(c). First, the requirement that the conviction for a triggering offence be handed down during the period of the suspended sentence has been removed. A second key difference between subsection 99(9) and the new amending subsections is the bringing together of conviction and sentence for the subsequent offence. This will allow a person to lodge an appeal against a conviction or sentence for a triggering offence prior to determination of the revocation issue. It also means that the court, in considering revocation of the previously suspended sentence, will be aware of the sentence imposed for the triggering offence and will, therefore, be in a better position to assess the gravity of the breach. A third important difference relates to providing a more workable and realistic timeframe for consideration of revocation of a suspended sentence, as I have outlined.

The notable difference between subsection (8C) and the original subsection 99(10) which it replaces is that the revocation proceedings will be adjourned pending determination of any appeal process. The adjournment of the proceedings to consider revocation of the suspended sentence ensures the procedural difficulty identified by the High Court is effectively dealt with by allowing a person to appeal conviction or sentence for a triggering offence before returning to the revocation court to have the matter of the suspended sentence dealt with. Revocation of the suspended sentence will not be considered until such time as the appeals process in respect of conviction or sentence for the triggering offence is complete.

Subsection (8E) sets out what is to happen when an appeal against conviction or sentence is withdrawn or abandoned. Subsection (8F) sets out what is to happen when the appeals process is final. Where the appeal is allowed, the revocation proceedings will be dismissed, but in all other cases, the revocation court will proceed to consider revocation of the suspended sentence. Subsection (8G) places an obligation on the person concerned to appear before the revocation court whenever required to do so by that court.

Section 2(e) substitutes subsection 99(11) and deals with the sequence in which the revoked suspended sentence and the sentence imposed for the triggering offence are to be served. I have clarified why this needs to be done.

Section 2(g) inserts a new subsection (13A) in the 2006 Act giving the Director of Public Prosecutions a power, similar to that of the Garda Síochána, the prison governor and the probation and welfare service under subsections (13) and (14), to make an application to a court to consider revocation of a suspended sentence where a condition under subsection (3) has been breached. This provision will strengthen section 99 by providing for an additional subsection (13) or (14)-type referral in order to ensure any breach of a condition of a suspended sentence is captured by the section, as is the policy intention.

Section 2(j) provides for a new subsection (18A) which sets out the procedure in regard to the remaining part of a suspended sentence when only part of the sentence is revoked. In this case, a further order may be made suspending the balance of that sentence. In this way, the section 99 procedure in respect of revocation of a suspended sentence will also apply to the part of a suspended sentence which has not been revoked.

Section 2(k) inserts two new subsections after subsection (19). Subsection (19A) takes account of the situation where a person has committed a number of offences and is subject to several sentences that are to be served consecutively. Subsection (19B) ensures District Court sentencing provisions are maintained and that the maximum term of imprisonment which can be imposed by the District Court in respect of sentences passed at the same time cannot exceed two years.

Section 2(l) provides for the inclusion of three new subsections after subsection (20). Subsection (21) clarifies that a consecutive sentence which is to be served following a part-revoked sentence should commence immediately following the expiry of the custodial period of the part-revoked sentence. Subsection (22) deals with sentences on appeal and provides that where a suspended sentence is imposed by a court on appeal from another court, the lower court from which the appeal was taken is the court to which the person will be remanded in order to have revocation of the suspended sentence dealt with.

Section 3 makes clear that where subsections 99(9) and (10) are referred to elsewhere in legislation, they are replaced by subsections (8A), (8B) and (8C), as inserted by this Bill.

Section 4 is a standard provision citing the Short Title of the Bill and providing for its commencement.

As I have outlined, this amending legislation is a necessary response to the High Court finding of unconstitutionality in respect of some of the suspended sentencing provisions in the 2006 Act. The Bill addresses the difficulty highlighted by the court and revises the procedure in order to ensure the suspended sentencing system can operate efficiently and effectively. I am sure Deputies appreciate the need to bring forward this amending legislation. I commend the Bill to the House.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I welcome the opportunity to contribute to this debate. Fianna Fáil supported the Bill in its passage through the Seanad and will also support it in this House. When dealing with criminal justice legislation, we tend to concentrate on the offences outlined in the Bill in question. Our laws are full of detailed definitions of serious and less serious criminal offences. For example, there is legislation to define how organised crime, firearms offences and misuse of drugs are prescribed and criminalised, including detailed descriptions of the nature of the criminal behaviour. Similarly, even in the case of minor offences such as minor road traffic offences, our laws outline the nature of the offence in detail.

This is the first opportunity I have had to deal with legislation focusing exclusively on sentencing. It is important that we acknowledge the importance of sentencing. We spend a lot of our time drafting legislation that criminalises certain types of human behaviour and includes, at the end, a section stating what will be the penalties. We must become more mature and advanced in our approach to the types of penalties and sentencing that are available to the courts. As things stand, the sentences imposed are largely the same sentences that were imposed in Victorian times, namely, fines and imprisonment. Part 10 of the Criminal Justice Act 2006 provides for different types of sentencing. Section 99, which we are dealing with today, is concerned with the imposition of suspended sentences. Other sentences are provided for under the legislation, such as the power to impose a fine, defer a sentence, restrict a person's movement and monitor the movement of an individual who has been found guilty of an offence.

We need to move beyond the standard fine and imprisonment and make available to the courts greater types of penalties to impose, particularly in respect of offences that do not involve violence or a threat to the safety of others.

What we are talking about this evening are suspended sentences. As the Tánaiste stated, such sentences play an important part in the criminal justice armoury. They are generally used in situations where a court thinks that an individual should be subjected to a custodial sentence but where there may be some exceptional circumstances giving rise to that sentence being suspended. Sometimes that applies when an individual has been convicted of an offence for the first time or where there are exceptional circumstances - for example, where the person convicted has young children to look after. It is important to recognise that suspended sentences should continue to play an important part in the criminal justice system.

The reason for this legislation arose out of section 99 of the Criminal Justice Act 2006, which deals with the power of the courts to impose suspended sentences. For many years after the enactment of that legislation, there was considerable difficulty with criminal practitioners in the courts as to how it should be applied. I suppose we should be grateful to Mr. Justice Moriarty, who clarified the matter and who brought a definitive conclusion to it in his decision given on 19 April last year in the case of Moore v. DPP. There were five other related proceedings with which the judge dealt in that judgment. Mr. Justice Moriarty was not the first judge to identify that there were failings and faults within section 99. The late Mr. Justice Hardiman commented upon it on 5 March 2015 in the Supreme Court decision in DPP v. Carter and DPP v. Kenny. It should be noted that when he was giving judgment in that case, the late Mr. Justice Hardiman referred to the fact that, as Mr. Justice O'Donnell had noted, section 99 had given rise to innumerable practical difficulties and problems of interpretation only some of which were illustrated by the present cases. He then went on to agree with the sentiments expressed by Mr. Justice O'Donnell, who had said that it was clear and beyond dispute that section 99 was in need of urgent and comprehensive review. I am pleased that this legislation, which has been brought before the Oireachtas in recent times, provides for that comprehensive review.

It should also be noted that the late Mr. Justice Hardiman also referred to the fact that some of the difficulties with section 99 would not have arisen if there had been any proper effort to consult the judges who implement the procedures for the activation of suspended sentences. There can be difficulties in trying to ask judges to review or consider legislation as it is going through this House because that would come close to interfering with the separation of powers. It is important, however, that when we are putting together sentencing legislation, we seek - in some general sense and without getting into the area of policy - indications and recommendations from those who have been judges as to how the legislation will be implemented and whether it can be implemented coherently and credibly by those operating in the courts each day.

The Tánaiste set out the difficulties in respect of section 99. If an individual is convicted of an offence and if the judge imposed a suspended sentence, there should be no difficulty provided the individual in question remains of good behaviour and that suspended sentence is not invoked or reactivated. In circumstances where the person commits and is convicted of a subsequent offence, however, problems arise. The reason for this is that the triggering of the second offence automatically reactivates the suspended sentence. The problem Mr. Justice Moriarty and other judges identified was that the individual, when convicted of the second offence and returned to prison on foot of it, had no opportunity to appeal because the suspended sentence had already been activated. If he or she appealed successfully, he or she had would have been sent to prison when that should not have happened because he or she would not have been guilty of the offence.

I welcome the legislation. I do not propose to go through it section by section since the Tánaiste has done that already. It will be a useful addition to the body of law relating to criminal justice. It will help judges in seeking to impose suspended sentences. It will help individuals who are given suspended sentences and who then find themselves in a situation where they are convicted of another offence that they wish to appeal.

I also welcome that the legislation takes into account that consecutive sentences can, and in certain circumstances should, apply if an individual is convicted of another offence. All too often there is no downside to an individual being convicted of an offence while he or she is already convicted of an offence because sometimes it does not result in an increased sentence - the person can serve his or her sentences concurrently. It is important that this provision provides for consecutive sentences.

I also note that at the time this judgment was delivered, some efforts were made to make Mr. Justice Moriarty stop short of striking down the relevant subsections on the basis that revocation arrangements could be put in place in respect of the individual cases. Mr. Justice Moriarty was correct when he stated he had considerable reservations about the appropriateness and fairness of such a course.

I welcome the legislation. In many respects, it is unfortunate that the only time we have discussed sentencing legislation in the life of this Dáil is as a result of a decision of the High Court. The latter has forced us to draft legislation and to get it through the House in order to rectify the deficiencies in section 99. It is important that the Oireachtas considers further advancements in respect of the area of sentencing. This is an area to which we do not devote sufficient attention. We need to consult broadly. We may need a commission in respect of sentencing. We must mature our attitude to sentencing. Generally, unless the convicted are guilty of violent offences or offences, such as those involving drugs, which give rise to a threat to the safety of others, we should be slow about putting those individuals in jail. That may create difficulties in circumstances where persons are involved in and convicted of criminal offences which result in significant property crimes, but I think we need a more sophisticated attitude. We cannot merely keep putting those convicted into jail because that does not seem to work. We need a more mature attitude to sentencing. Suspending sentences is an important part of our repertoire. However, we need to look at more and different types of sentences that can be made available to judges who have to deal with the different variety of criminal offences that exist in the criminal justice system.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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I give notice to the Deputy due to speak after me that I will not be taking the full 20 minutes. Like previous speakers, I will probably take ten minutes.

I also welcome this Bill. As the Tánaiste stated, it passed through the Seanad and received considerable support. I was not aware that anyone had opposed it. I understand that it went through with the full support of the Seanad. I hope that will be replicated in this House. My party certainly will be supporting the legislation.

Like the Tánaiste and the previous speaker, Deputy O'Callaghan, my party believes that the option of suspended sentences is an important part of the criminal justice system. In circumstances where individuals commit and are convicted of particular offences and where judges have the option of handing down suspended sentences, my party would encourage them to exercise that power wherever applicable.

The conditions attaching to a suspended sentence should in all cases be preventative in nature. In other words, somebody who does not commit another offence should be given that second chance. The conditions should also be restorative. Somebody who receives a suspended sentence must acknowledge that he or she has committed a crime - he or she has been convicted after all - that he or she is under an obligation to either the victim or the wider community and that it is not just a case of staying out of trouble for six or 12 months or whatever. It should be built into the conditions attaching to suspended sentences that such individuals should give something back to the community. That would be beneficial for everyone involved.

I agree with Deputy O'Callaghan that we do not get the opportunity to discuss sentencing very often in the House. We usually deal with legislation related to imposing convictions or providing for offences for breaches of the law. Sentencing is probably one of the most important parts of the criminal justice system. It is supposed to be the deterrent to prevent somebody from committing another crime. It is well established, and the Law Reform Commission and the Irish Penal Reform Trust have published reports in this regard, that simply jailing people is not the answer in many cases. One sends somebody to prison where it is warranted, but even within the prison system it is not a case of punishing them but of trying to rehabilitate them. In many cases it is very unpopular for politicians to say that, but the reality is that this is what the prison system is supposed to do. It is supposed to rehabilitate people and give them the skills and education they may have been lacking prior to being sentenced. Perhaps it is time to have that grown-up debate about sentencing guidelines. Perhaps we must even examine certain guidelines for sentencing. It is certainly not popular to say that somebody who goes to prison should get access to education or training, which somebody who is not in prison might struggle to access because of their circumstances, but it is the right thing to do. It would benefit society in general if we had an open debate on the sentencing issue.

With regard to the legislation, the Minister outlined in detail the differences between what is being proposed and what is in the old legislation that was struck down by Mr. Justice Moriarty's judgment in the High Court in April last year. I am not fully certain about one element, although this might not be the place to ask the question as it might be more appropriate to Committee Stage. However, let us say somebody receives a custodial sentence and part of it is suspended. Does this legislation cover the situation where they serve their custodial sentence, and two or three years are suspended as part of the sentence, and when they are out in that period of time they commit another triggering offence? I presume it does, but perhaps the Minister would clarify that.

One of the areas which we should debate is mandatory sentencing, and I am taking the opportunity to raise this while we are discussing legislation on sentencing. Some people are very much in favour of it, but I oppose it. We have provided for mandatory sentences for certain types of drug convictions. All of the evidence suggests that mandatory sentencing is counterproductive. That might be a piece of work for the Oireachtas committee on justice. The committee is finalising its work programme tomorrow and it is probably too late to include a piece of work on sentencing, but it is something that perhaps I and Deputy O'Callaghan could encourage the committee to examine in the near future. It is an important piece of work because, as I said, we must have that grown-up, mature debate on sentencing. On many occasions when we are discussing criminal justice issues in the Chamber, Members tend to go off on tangents to talk about local Garda stations being closed or other areas of policing and justice that are not really relevant to the legislation under discussion. That is not to say they are not important, but the one area we do not discuss or to which we do not give any consideration is sentencing and, as I and the previous speaker have said, that is probably the most important part. It is the sentencing element of our criminal justice legislation that is the deterrent and the part that could change somebody's life.

Suspended sentences are an integral part of our criminal justice system and judges should be encouraged to use them where appropriate. Again, in the conditions imposed with a suspended sentence obviously the priority is to prevent somebody from committing another offence, but there must be a restorative element built into it as well. We welcome the legislation and we support it. I hope all sides of the House will support it and that it can be enacted as quickly as possible.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank Deputies for their response to the legislation. I am pleased they have accepted the Bill and that it can proceed to Committee Stage. It is a short and technical Bill, but it is significant. I thank the Deputies for their support and I welcome their comments.

Deputy O'Callaghan made thoughtful comments on sentencing. Deputy O'Brien raised the question of mandatory sentencing, an issue that arises quite often. The expert reports I have received in recent times do not suggest further mandatory sentencing but, as the Deputy said, people in the public domain often think it is the way forward. However, when detailed consideration has been given to it, it has not been recommended to me in the reports and is not seen as the most effective way to proceed. That does not stop public demand for it at times, which is quite understandable. When people see horrific crimes being committed they think a mandatory sentence is the best way to deal with them, but that is not the recommendation I have received.

On the particular point Deputy O'Brien raised, section 2(j) provides for a new subsection (18)(A) which sets out the procedure relating to the remaining portion of a suspended sentence when part only of a sentence is revoked under the subsection. Where a court revokes a suspended sentence in part, a further order may be made suspending the balance of the sentence and the order will be regarded as if it were an order to suspend a sentence under subsection (1). In this way the section 99 procedure relating to a revocation of a suspended sentence will apply to the remaining part of a suspended sentence. This reflects what currently happens in practice.

Section 99 of the 2006 Act was a significant legislative development in the context of sentencing. It enshrined in statute the power to suspend a sentence but provided for revocation of the suspended sentence in the event of the commission of another triggering offence. It was very important when it was introduced. Prior to its introduction in legislation in 2006, suspended sentences were handed down under common law but were seldom activated and did not therefore act as a meaningful deterrent to repeat offending. Section 99 was designed to ensure that persons did not get away with breaching conditions of their suspended sentences. However, it gave rise to operational difficulties, as Deputy O'Callaghan mentioned, mainly in respect of the sequencing of court hearings for the triggering offence, the revocation of the suspended sentence and with regard to the appeals mechanism. This resulted in a number of legal challenges which culminated in the High Court hearing last April.

We are correcting the deficiencies that were identified by the High Court. I have already given the details of the changes and how they will operate in making necessary and desirable improvements to the suspending sentence regime, which is such an integral part of the judicial sentencing system. Again, I thank the Deputies for their support of the Bill and commend the Bill to the House.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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Will the Minister comment briefly on the restorative part of a suspended sentence? The conditions attached to a suspended sentence are obviously preventative, to encourage somebody not to commit another crime. Is there any element we could build in to make them restorative as well, so people give something back to the community?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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7 o’clock

The whole approach to suspended sentencing is in terms of restorative justice in the broadest sense of the term. It is based on the hope that the person will stay away from crime and will not become further involved. There is a motivation built into the approach to suspended sentencing. It is a separate issue and a court would consider it when bringing in probation or other initiatives. I can consider it further, ascertain whether there are any particular connections and address it on Committee Stage. I do not have anything further to say about it at this point.