Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I am bringing forward this relatively short but technical Bill to address Mr. Justice Moriarty’s High Court judgment of 19 April which found certain provisions of section 99 of the Criminal Justice Act 2006, which provides for the suspension and subsequent revocation of sentences, to be unconstitutional. Suspended sentences are an integral part of the judicial sentencing regime and 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 and a deterrent to the commission of further offences since the threat of the original sentence imposed and the inevitable prison sentence remains. A suspended sentence is imposed for a certain time period and subject to a number of conditions, the primary condition being that the person must keep the peace and be of good behaviour. A breach of this condition results 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 the provisions in section 99(9) and(10) to be unconstitutional and these provisions have been struck down. The 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 a 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 in subsections (13) and (14) is being used on a case by case basis, pending enactment of this amending legislation. It is appropriate that we use this measure in the meantime which will restore the automatic court-driven revocation process. While this alternative mechanism ensures 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 in order that the system of automatic revocation of suspended sentences can be restored.

The implications of the High Court judgment have been considered in consultation with the Attorney General and this amending legislation has been prepared to address the particular difficulty identified in order 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 take the opportunity to outline the main provisions contained in this short Bill.

Section 1 clarifies that references to “the Act of 2006” mean the principal or parent Act, the Criminal Justice Act 2006.

Section 2 provides for amendments to section 99 of the Criminal Justice Act 2006 as follows. Paragraphs (a) and (b) are technical amendments and provide for transmission of copies of court orders to suspend sentences by electronic or other means. The amendments clarify that modern means of document transmission can be used.

Subsection (8A)(a) provides that where a person commits 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 then 15 days after the remand, or, where there is no sitting 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 that court held after that day. This provision ensures 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.

Section (8A)(b) is a permissive provision which provides that a court may remand a person to a special sitting of the revocation court. This is to cover situations where a special sitting takes place sooner than a scheduled sitting.

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. This is technical legislation. It is important it be enacted in order to provide clarity. Although the provision on which we were relying was perfectly within legal limits, we took the view that we should address the issue identified.

It may be useful at this point to outline the most significant differences between section 99(9) of the 2006 Act and the revised subsections (8A) and (8B). 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 section 99(9) and the amending subsections is the bringing together of conviction and sentence. This bringing together of conviction and sentence for the triggering offence will allow a person to lodge an appeal against a conviction or sentence for a triggering offence prior to determination of the revocation issue. This 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 said, remand to a sitting of the court will now take place no later than 15 days after such remand or, where there is no sitting of that court, within that 15-day period to the next sitting of that court. The notable difference between subsection (8C) and the original section 99(10) which led to the difficulties is that the revocation proceedings will be adjourned pending determination of the 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 relation to conviction or sentence for the triggering offence is complete.

The other subsections in the Bill deal with the various issues that arise subsequent to that in regard to the various proceedings. I do not propose to go into the detail of all of the subsections, but it is provided in the speech circulated for those who wish to avail of it, except to say a new subsection (13A) has been inserted which gives the Director of Public Prosecutions a power, similar to that of An Garda Síochána, the prison governor and the Probation Service 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 to ensure any breach of a condition of a suspended sentence is captured by the section, as is the policy intention.

Two new subsections, (19) and (19A), have also been inserted. These subsections take account of the situation where a person has committed a number of offences and is subject to a number of sentences which 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. There are also a number of other sections included in the Bill. This amending legislation is a necessary response to the High Court's finding of unconstitutionality in relation to some of the suspended sentencing provisions. The primary purpose of the Bill is to address the difficulty in relation to the differing treatment so far as rights of appeal are concerned, as highlighted by the court, and to revise the procedure to ensure the suspended sentencing system can again operate efficiently and effectively. I trust that Senators will appreciate the need to bring forward this technical legislation to deal with the issue highlighted by the High Court and clarify the original intention of section 99. I commend the Bill to the House and ask Senators for their support for it.