David Stanton (Cork East, Fine Gael) | Oireachtas source

I am representing the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, who cannot be here. On my behalf and that of the Minister, I would like to thank Senators Marie-Louise O'Donnell, Craughwell and Humphreys who are co-sponsors of the Bill. I also want to recognise those in the Gallery whose relatives have been the victims of murder.

Murder is the taking of a life in violent circumstances involving a brutal loss of life and tragic lifelong consequences for the family and friends of the victim. Rightly, therefore, murder is regarded under our law as the most serious criminal offence, attracting a mandatory life sentence on conviction. Where a person is convicted of a murder, a court must and does impose a sentence of life imprisonment. A mandatory life sentence lasts for the duration of the offender's life, although offenders are currently eligible for temporary release at the discretion of the Minister for Justice and Equality and on recommendation from the Parole Board.

What the court does not do, but which the Bill purports to do, is determine and impose a minimum period of custody to be served before release can be considered. The minimum periods of custody set down in this Bill are very high, with starting points of 40, 30 and 25 years. Similar provisions in the UK are 30, 25 and 15 years.

There is a perception that persons convicted of murder serve relatively short periods in prison and this was true in the past. However, today a person convicted of murder in Ireland serves an average of 18 years in prison. By way of comparison, in the UK it is 17 years. The current 18-year average in this State compares with an average of just over 7.5 years for releases between 1975 and 1984, just under 12 years for the period between 1984 to 1994, and just under 14 years for the period from 1995 to 2004, since when the average has been steadily climbing.

While a life sentence prisoner might anticipate release from detention at some stage, he or she is likely to serve a lengthy sentence before that occurs. Moreover, and crucially, a person convicted of murder will remain subject to recall at any stage of his or her natural life should he or she commit a further offence or breach a condition of his or her release.

The management of custodial sentences is key in the successful rehabilitation and reintegration of an offender. It can, however, be a challenge to incentivise life sentence prisoners to participate in certain rehabilitative programmes where release is many years away. The substantial increase in the periods of custody proposed in the Bill, together with the disapplication of any form of remission or temporary release under section 1 is, therefore, a matter of concern with respect to the rehabilitation of offenders.

There are also other difficulties with this Bill. The Bill effectively creates a hierarchy of murder, with section 5 concerned with what is termed the most serious category, including murders where the victim was abducted or the victim was subjected to sexual, sadistic, humiliating or degrading conduct. Also covered are persons who hire someone else or are hired to commit murder. The section will also apply to murders with more than one victim and which involve an act of arson, although the Bill is silent as to multiple victims arising from other acts.

The minimum custodial period if convicted for an offence which the court considers to fall under section 5 is 40 years. While there is some judicial discretion to lower or raise the penalty, there is a limit, under section 8 of the Bill, on lowering the minimum period of custody from 40 to 30 years.

Section 6 provides for minimum periods of custody of 30 years where the offence involves the use of a weapon and the court is satisfied that the fear, pain and suffering occasioned on the victim was of a significant, serious and prolonged nature. This section will also apply to the murder of one person by way of arson. Section 8 limits judicial discretion in lowering the penalty to a minimum of 25 years.

There are evidential aspects to sections 5 and 6 which raise concern. For instance, for a particular offence to fall under section 6, the court would have to be satisfied that the fear, pain and suffering occasioned on the victim by the offender was of a significant, serious and prolonged nature. I accept that these sections are simply for the purpose of determining sentence. However, after a jury returns a verdict of guilty of murder, the court must, under this Bill, then begin the exercise of hearing evidence as to the precise nature of the offence and the degree of fear, pain and suffering and whether it was of a significant, serious and prolonged nature. This is not necessarily evidence which would arise or be necessary in trial, the obvious instance being those cases where an offender pleads guilty which does arise, albeit rarely.

How the significance and prolonged nature of the victim’s fear, pain and suffering could be proven is difficult to envisage in all cases. I have similar concerns regarding the reference to humiliating or degrading conduct under section 5. The last thing anyone wants is for decisions on those factors to become a basis for judicial review or appeal. I very much believe that these aspects of the Bill should, at a minimum, be reviewed by practitioners, including the Judiciary.

A further difficulty with the Bill is that it creates an anomaly with respect to the existing offence of murder under section 3 of the Criminal Justice Act 1990, formerly known as capital murder. Under that Act, the murder of a member of An Garda Síochána or a prison officer is subject to a minimum period of imprisonment of 40 years to which remission for good conduct of one quarter applies, effectively creating a minimum sentence of 30 years. As I mentioned, this Bill would appear to specifically exclude the application of remission to the minimum periods of custody.

In effect, this may result in greater penalties being served under the Bill than would be served for the murder of a member of the Garda or prison officer. Given that the latter have been given special provision under statute, it is arguable that the proposed mandatory minimums proposed under the Bill are disproportionate and could be subject to challenge on that ground. This anomaly between the penalties for murder under the Bill with those under the 1990 Act is confirmed by the provision in section 5(6) of the Bill which confirms that its provisions do not replace or supersede the 1990 Act.Section 7 deals with other cases of murder which do not fall within sections 5 or 6 and sets a minimum period of custody of 25 years, and while judicial discretion to reduce this penalty is not restricted, as it is for sections 5 and 6, the proposed minimum period of custody is nonetheless considerably higher than current periods spent in prison on a life sentence. Over a period of time, that would significantly increase the number of prisoners in prisons and inevitably lead to increased costs. That is not a major issue but it is something our colleagues have raised. However, the more immediate concern is the negative impact that such an extended period of imprisonment would have on the rehabilitation and reintegration of prisoners who would be less incentivised to participate in rehabilitative programmes and more vulnerable to institutionalisation. The successful rehabilitation and reintegration of a prisoner following release from prison must be a central aim of sentencing and penal policy. This Bill does not support that aim. Experience from other jurisdictions also show that extremely long prison sentences with little prospect of release can lead to more extreme and volatile behaviour in prison, including violence against other prisoners and staff.

I know the sponsors of this Bill have cited the position of the Law Reform Commission, LRC, in support of the provisions in the Bill and that the LRC also recommended that judges may recommend a minimum period to be served in custody prior to consideration for temporary release. While the LRC saw benefit in allowing a court to judge on relative culpability of an offender as a useful guidance for a subsequent decision on the release of an offender, the LRC did not recommend a prescriptive legislative model as proposed in the Bill. Moreover, the LRC recommendation was that a judge may recommend a minimum period of custody but that there would be no obligation to do so.

There are also questions as to the impact of the Bill on the role of the Parole Board. Currently, a judge imposes a life sentence on a person convicted of murder without specifying a period to be served, the Parole Board is then responsible for reviewing that sentence and making recommendations as to release and will do so having regard to the nature and gravity of the offence. However, under the Bill the court is required, in determining the period to be served, to consider the nature of the offence and the circumstances of the offender as well as any relevant aggravating or mitigating factors. This is established sentencing practice and in circumstances where a court determines that sentence, taking Into account those factors, it is unclear how a period of detention beyond that sentence could be supported and therefore what role, if any, would exist for the Parole Board, either in its current non-statutory form or as a statutory body as is proposed in a Bill currently before the Dáil.

I also have questions regarding other aspects of the Bill - for instance if section 1 is intended to prohibit any form of remission, it could be interpreted as an inappropriate fettering of the discretion in the President, under Article 13.6 of the Constitution, to pardon or remit any punishment imposed by a court. By way of contrast, when it comes to capital murder under the 1990 Act, that Act only disapplies the remission of sentence provision contained in section 23 of the Criminal Justice Act 1951. In addition to the concerns already outlined, the Bill does not reflect the recommendations arising from more recent reviews such as the Joint Oireachtas Committee on Penal Reform in 2013 and the strategic review of penal policy in 2014.

Of course the Bill also needs to represent the views of a number of stakeholders - in particular the Judiciary, criminal practitioners and those who work with offenders. Great care must be taken in addressing this area of law and consideration should also be given to existing legislative proposals such as those to establish the Parole Board on a statutory basis. Such a hugely significant change to criminal law should first be the subject of extensive consultation. As I said, murder is the most serious of offences. The impact and consequences are lifelong, as is the effect of the mandatory life sentence which means offenders are subject to recall to prison for the duration of their life. I fully appreciate what the Senators who have sponsored this Bill are seeking to achieve. The family and loved ones of the victim of murder must and do live with the consequences of that horrific crime for the rest of their lives. Current sentence management focuses on the rehabilitation and reintegration of offenders as the most effective means of maintaining safe communities. However, in the Government's view the Bill as its currently stands is excessively punitive and does not accommodate our responsibility to ensure that an offender can, to the greatest extent possible, be safely released into the community.

I have listened carefully to what everyone has said here. I note the passion, integrity and seriousness with which the issue is taken. As you know, a Chathaoirligh, I served for five years as Chair of the justice committee and one of the things we did there was to have a process of legislative scrutiny whereby topics such as this which are so important, detailed and serious were scrutinised carefully by the committee. Members of the public and other interested experts, individuals and bodies could have an input into proposed changes in policy, such as the one before the House. Unfortunately, due to the nature of the Bill as a Private Members' Bill, it was not possible to carry out pre-legislative scrutiny, for example, which is a pity in many ways. With all humility and respect I ask if the House would consider adjourning the debate and inviting the Oireachtas committee to further examine this topic in great detail, taking on board many of the points made by Senators. That would mean the entire policy area could be examined, not just amendments that would arise on Committee Stage. Senator Boyhan made such a point when he asked that the Bill would be examined. I am willing to facilitate that, as is the Government, if colleagues here are supportive of that. I acknowledge that the Oireachtas committee is independent and we can only ask it to carry out the work, but I am sure the members of the committee would be most anxious to take on board the suggestions, ideas and proposals and invite members of the public and others to submit to the committee so that the issues could be examined and the committee could report back to the Houses and the debate could be picked up at a later Stage. In effect, it would just be adjourned today. That is my suggestion at this time, a Chathaoirligh. I am in your hands as to how you wish to proceed.