Alan Shatter (Dublin South, Fine Gael)

As on Second Stage, I wish to thank the Senator and his colleagues in the House for their support for the Bill. It is important that when they make decisions, members of the Judiciary at all levels should provide their reasoning in respect of those decisions. At present, however, there is no requirement to the effect that written judgments should always be provided.

I appreciate that the proposed amendment is well intended. I believe the Senator shares my objective that community service orders be used, in the context of the provisions of the Bill, as frequently as possible and that people should not be sent to prison for very short periods at great cost to taxpayers, particularly when the latter would benefit to a much greater degree from those individuals carrying out community service in their localities and making restitution in respect of the crimes they have committed. Community service might also provide convicted offenders with an insight regarding other possible uses to which they might put their time. I am optimistic that this might result in fewer people reoffending in future. A range of benefits can accrue from using community service orders.

It is important that members of the Judiciary should apply the law as it will stand when this Bill is enacted. I do not doubt that they will do so. Having said that, I do not propose to accept the amendment for the following reasons. Under existing community service legislation, when considering imposing a sentence of imprisonment, regardless of the length thereof, a court may, as an alternative, impose an order of community service. The latter can be prescribed not only in circumstances where a sentence may be for one year or less but also in other circumstances.

Section 3(a) reflects the primary purpose of the Bill and involves the insertion of a new section 3(1) into the principal Act. This new subsection requires a court to consider making a community service order where a sentence of imprisonment of up to 12 months is contemplated. In essence, a judge who, in determining sentence, has concluded that a custodial sentence of up to 12 months is appropriate will, on foot of this Bill, be required to consider imposing the alternative sanction of community service. However, in respect of sentences of greater than 12 months, the Bill will make no change. In such cases, a court may impose the alternative sanction of community service. However, there will be no obligation to consider doing so. The proposed amendment would, in my opinion, conflict with that provision in so far as it would require written reasons for not imposing community service in circumstances where there is no requirement to consider such and also in circumstances where such service would clearly be inappropriate as the mechanism to deal with the consequences of a particular offence. It would be odd that there would be no similar requirement in respect of sentences of less than 12 months where an obligation to consider community service does arise.

Before commenting further on the amendment, I wish to address, in more general terms, the requirement on our courts to provide reasons. There is already an obligation on all courts to give clear and adequate reasons for their decisions and there is well-established jurisprudence to that effect. In the District Court, judges state their reasons in open court but, as stated earlier, they are not required to provide those stated reasons in writing. It has been considered that because the jurisdiction of the District Court is limited to minor offences, it would be an undue imposition to place upon it a requirement to provide written reasons for its judgments in all cases. I do not propose to change that practice for the District Court or other courts at this time. The question of an obligation to provide written reasons for sentencing decisions is broader than the matters contemplated in this Bill and would require extensive consideration and consultation.

I would also be concerned that requiring the provision of written reasons in respect of relatively straightforward cases would result in undue delays in determining the outcome of court hearings. If judges were required always to provide written reasons, this would give rise to a situation that only rarely arises in the District Court where, having heard a case and handed down a conviction, a judge might be obliged to automatically adjourn proceedings until another occasion in order to prepare a written judgment prior to sentencing. There is no requirement in this regard at present.

Bearing in mind that which I have outlined, I consider that the amendment, if accepted, could be regarded as an incremental approach to introducing written reasons. I am of the view that the latter would create a potential imbalance on two fronts. Given that it is limited to sentences of more than 12 months, it would apply only to the higher courts and would require them to provide written reasons and would, in effect - I presume this is an unintended consequence - exempt the District Court. The latter is particularly the case in view of the fact that the legal limit for minor offences summarily dealt with in that court is a maximum of 12 months. I do not consider it appropriate to introduce this distinction between our courts. I understand what the Senator intends but there is a technical difficulty with the amendment, as proposed. The amendment might also create an imbalance in so far as the circumstances in which the obligation to provide written reasons would arise.

The amendment requires written reasons not for the purpose of explaining a sentence, whatever it may be, but rather for outlining the position in circumstances where a community service order is not imposed. I would have to question the justification for not having a similar requirement in respect of other alternative sanctions or custodial sentences. However, I acknowledge that an amendment to that extent would, of course, fall outside the remit of the Bill before the House. Nonetheless, the distinction between community service and all other sanctions which this amendment would create is one which I would not be inclined to introduce.

For the reasons I have stated, I do not propose to accept the amendment. However, I welcome the opportunity it has presented to outline some of the issues surrounding this matter. I fully and unconditionally accept the Senator's good intentions in tabling this amendment and I understand that some of the technical issues arising out of the manner in which it was framed may not have been to the forefront of his mind.