David Cullinane (Sinn Fein)

I move amendment No. 1:

In page 4, between lines 33 and 34, to insert the following:

"(c) Where a court, by or before which an offender stands convicted, is of the opinion that the appropriate sentence in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment of more than 1 year and where a court decides not to make a community service order in relation to said offender, then a court shall provide a written reason to explain the reason for not making a community service order.",".

I welcome the Minister for Justice and Equality. He will know from yesterday's contribution that I support the substance of the Bill and I commended him and the Government on bringing it forward. However, I have tabled a couple of amendments, which will be helpful. If the Minister is not able to accept them today, he will certainly accept the thrust of the arguments we make in both cases and I hope he will take the points on board.

One of the reasons I tabled amendment No. 1 is that the purpose of this Bill is to make it easier for judges to consider imposing community service orders over custodial sentences. We all accept the logic of that in certain circumstances. In my experience, the court system and judges take the letter of the law very seriously, which is only right. However, jurisprudence occasionally throws up examples of judges creating formulas and four and five point rules. There are examples, such as the M'Naghten rules and so on, where formulas and tests of this kind can help to shape judges' thinking. Likewise, we see this with the requirement for mandatory and discretionary warnings for witnesses and what shape those warnings can take.

In this instance, it is not unreasonable to request the judge to give a written reason and state his or her decision in a very plain way as to why a community service order was not used. That would not be a major imposition on a judge and it would give him or her an opportunity in a rational and clear way to set out the reason he or she was not in a position to use the community service order and opted for a custodial sentence or some other form of justice.

Judges are often required to issue judgments, so this would not add to their workload in a significant way. It would add clarity and certainty to the laws surrounding community service orders and it would give shape to when and where they should be applied. A number of people outside the House, who have concerns, contacted me. Many of the arguments we hear about the judicial system is that judges can interpret laws in different ways. It should be very clear in this case and there should be clarity around when a judge should use a community service order. If a judge was not to use a community service order, he or she should provide a written statement as to the reason he or she did not do so. That would be of assistance to everyone, including the Minister and his Department. It would certainly be of help in shaping decisions which may have to be taken to strengthen this in the future, particularly as we are hopefully going to move towards an approach of using community restorative justice to deal with certain crimes committed in the State.

On Second Stage the Minister referred to the pilot projects which have been rolled out and which were supported by my party. The joint policing committee in Waterford requested that similar projects be rolled out there. Representatives from an advocacy organisation attended a meeting of the joint policing committee in order to discuss issues such as community service orders and community restorative justice. They made the argument that consistency is the most important aspect of this matter. In the context of cases where the Minister or others might be of the view that an order could be brought into play, judges should be obliged to indicate why such orders are not handed down. It would be of assistance if everyone involved could understand from where judges are coming in respect of this matter. As a result of the fact that there would be no cost to the State and because there would be no real imposition on judges, it is reasonable to ask the Minister to accept the amendment. If he is not in a position to accept it now, perhaps he might indicate that he will give consideration to the intention behind it.