Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Kathleen Lynch, to the House and look forward to hearing her response to this debate. I commend Senator Martin Conway on his initiative in putting this important motion to the House. I also welcome the groups represented in the Visitors Gallery, who agree it is very important we debate this issue, particularly in the wake of the report of the National Commission on Restorative Justice.

I have a strong interest in this area. Along with Senators Conway and O'Donovan, I have shared in the work being done by the Oireachtas Joint Committee on Justice, Defence and Equality in the area of penal reform. Next Wednesday, we will publish a report on the issue which will complement this debate because it focuses on the back door strategies or end of sentence strategies and on issues such as remission and the community return programme. The committee has been looking at addressing overcrowding and appalling conditions in prisons and at addressing the high rates of recidivism or re-offending through dealing with end of sentence and sentence management within prisons. Therefore, it is useful that tonight we are debating issues around the pre-sentence and how we can divert offenders away from custody in the first place.

Restorative justice has a long history in Ireland. In our indigenous legal system, the Brehon law system which predated the introduction of the common law system, there was a very well-established restorative justice model, whereby the families of a victim were paid an honour price by the offender by way of reparation for the wrong done to the victim's family. This is a traditional model we share with other indigenous systems. However, this system has been overwhelmingly replaced in our modern criminal justice system by retributive principles, whereby people are given a sentence proportionate to the seriousness of the crime they have committed, on a sort of "just desserts" or proportionate basis. While this is a standard model of criminal justice, there are many problems and flaws within it, as mentioned by Senators Conway, Burke and O'Donovan. We have rejected other models such as deterrents and incapacitation. I believe we should emphasise rehabilitation as a model more in our sentencing system, but I also believe restitutive or restorative justice has a very important role to play and I would fully endorse the recommendations of the commission in terms of implementing these on a national basis.

We have some existing models in statute. We have a provision in our criminal law whereby judges can order compensation be paid by an offender to a victim. Although this is not used as extensively as it could be, it could be built into a more structured restorative justice system on a national basis. Under the Children Act 2001, we also have a provision, at the juvenile stage, for victim offender mediation. It is worth noting that the interest in restorative justice has taken off in modern Ireland since the second have of the 1990s. Therefore, this is all fairly new.

The pilot projects mentioned by Senator Conway began in 1999, when approval was received for the payment of grants through the probation service. Those projects in Nenagh and Tallaght were analysed at some length when the National Commission on Restorative Justice, which was established in 2007, issued its final report in 2009. Importantly, this work was predated by the Oireachtas oral hearings on the benefits of restorative justice methods in Ireland, which took place at the Joint Committee on Justice, Equality, Defence and Women's Rights in 2006. The committee's report, which was launched in January 2007, contained ten recommendations proposing that restorative justice be developed as a more regular feature of the Irish criminal justice system. A good deal of work has been done. Later in 2007, following the publication of the joint committee's report, the then Minister for Justice, Equality and Law Reform launched the National Commission on Restorative Justice. Our distinguished predecessor in this House, Dr. Mary Henry, who has a long-standing interest in restorative justice, was among the members of the commission, which was chaired by Judge Mary Martin.

The report of the National Commission on Restorative Justice contained some exciting and clear recommendations relating to the potential of restorative justice with regard to diversion from prison. It suggested that "between 290 and 579 persons due to be sanctioned before the courts could be diverted from being given a custodial sentence" and that this could bring about "a reduction of between 42 and 85 prison spaces per annum". That would be an important part of an overall programme of penal reform or decarceration. In any of these models, there is always a danger of "net widening", as it is called in criminology, whereby people who might not otherwise have been sent to prison are brought into the net. In other words, we need to be mindful that judges tend to impose restorative justice orders on people they might not otherwise have sent to prison. The commission has recommended that the restorative justice model should be confined to people who would otherwise be serving sentences of up to three years.

As I have said, the commission's recommendations are very important. Most notably, it recommended that the models of restorative justice should be rolled out with nationwide application by 2015 at the very latest, that restorative justice should be grounded in legislation and that the probation service should continue to take the lead as part of a multi-agency approach. All of us would endorse those important recommendations and would concur with what Senator Conway said when he welcomed the somewhat limited extension of the pilot projects. We all want the 2009 report to be followed up. We want a national strategy, building on the great work that is still being done in Nenagh and Tallaght, to be developed. Senator Conway mentioned the work that is being done in this regard by Le Chéile in Limerick. There is a need for further monitoring and for an up-to-date review of the way restorative justice programmes are operating. There is no doubt that these programmes will be of huge benefit to our criminal justice system when they are rolled out nationally. I commend Senator Conway for taking this initiative.