Seanad debates

Tuesday, 5 December 2006

Prisons Bill 2006: Report Stage.

 

4:00 pm

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)

I propose to deal with amendments Nos. 16 to 23, inclusive, together as they relate to sanctions and appeals. Amendment No. 16 proposes that one of the sanctions that can be imposed by a prison governor on a prisoner for a breach of prison discipline is the forfeiture of some or all of the money credited or to be credited to the prisoner from public funds for work carried out in a prison, which is not subject to the National Minimum Wage Act. I have consulted the Parliamentary Counsel and am advised the current text of section 13(1)(e) already deals with this point. Hence, the amendment is unnecessary and I do not propose to accept it.

Amendment No. 18 tabled by Senator Cummins proposes the insertion of the phrase, "denial, but not confiscation,", of a gratuity earned in section 13(1)(g). On Committee Stage I indicated that I would reconsider the wording of this subsection and revert to the House. The wording I now propose in amendment No. 17 replaces the word "denial" in this provision with postponement of payment of the gratuity earned, which I hope makes the meaning more clear. The intention is that while the prisoner would not have the use of any gratuities for a period, such gratuities would not be forfeited. Senator Cummins's suggested use of the word "confiscation" in this regard is not the best solution as confiscation can only apply to something already in the prisoner's possession and not to moneys that would normally be earned during the 60 day period. The use of the word "postponement" removes any doubt as to the meaning of the provision.

Amendment No. 19 has been introduced following the tabling of an amendment on Committee Stage by Senator Tuffy to the effect that a governor would inform the prisoner of his or her right to any sanction imposed through an appeal tribunal. At the time, I indicated that I had sympathy for that amendment because the Bill did not expressly state that a prisoner would be informed of an option to appeal. Having consulted the Parliamentary Counsel on the issue, I have tabled this amendment to section 13 to the effect that when a sanction is imposed, the governor must explain, in ordinary language, that the prisoner may petition the Minister regarding a sanction, and if the sanction includes forfeiture of remission of a portion of a sentence, the prisoner may appeal the decision to an appeal tribunal. I am widening the provision in the manner suggested originally by the Labour Party Members. Moreover, the provision will be better placed in section 13, rather than in section 15 as originally proposed. I thank Senator Tuffy and the Labour Party Members for bringing this matter to my attention and for their proposed amendment. This makes amendment No. 20, which deals with the same issue, redundant.

I cannot deduce the need for amendment No. 21 tabled by Senators Cummins and Brian Hayes. The use of the term "request" in this regard, as suggested by the Senators, indicates the governor would have some form of discretion in the process of allowing an appeal or that he could allow or refuse the request. This is not the case. An indication of a forthcoming appeal must be forwarded to the tribunal as is provided for in section 15(2) and it is not in the governor's power to prevent this. Therefore, the amendment should not be accepted.

In respect of amendment No. 22, while I cannot accept the proposed amendment, the word "request" is not the most appropriate. I will reconsider the wording in conjunction with the Parliamentary Counsel with a view to reverting to an appropriate amendment in the Dáil.

Amendment No. 23 would have the effect of allowing persons other than barristers or solicitors of seven years' standing to act as appeal tribunals. I indicated on Committee Stage that I do not propose to accept this measure. It is important that a member of an appeal tribunal should have extensive legal experience. Moreover, as an appeal tribunal is a quasi-judicial authority, it is not appropriate that somebody with no legal background should take on a judicial role.

It was suggested in the House that persons such as former prison governors or prison chaplains would be eminently suitable for the role. Having considered that carefully, I am not in agreement. It would be unfair to ask a religious person to sit in judgment in this fashion and probably not a role that he or she would relish.

As for former prison governors, appeal tribunals must be independent in their functions and while a prison governor may have certain experience which I fully accept could be useful in the role, if I were to allow a former prison governor to consider lifting a sanction placed on a prisoner by a current prison governor, there would be many objections as to whether the procedure was truly independent.

As appeals tribunals are being established to ensure that we are in compliance with the European Convention on Human Rights, it is important that they should be perceived as being wholly independent and of a legal nature. Furthermore, if we were to stray outside the requirement for legal personnel, we would be looking at something close to the existing visiting committee structure and that might not be appropriate either.

The case law of the European Court of Human Rights and legal opinions obtained by the Office of the Attorney General point to the possibility that imposing loss of remission as a sanction might be regarded as the equivalent of imposing an additional sentence of imprisonment and therefore might require safeguards associated with due process, including the right to legal representation. For that reason, it would be more appropriate to have a person with not just legal training but legal experience, rather that have somebody who had no such training. I do not want a situation where a lay person is being bamboozled by lawyers and it is important that if somebody will act at the tribunal and if it is possible at all that lawyers will appear in that forum, it is better that the tribunal members should have some legal training.

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