Lorraine Clifford Lee (Fianna Fail) | Oireachtas source

Like Senators Coffey and Norris, I acknowledge the presence of the families in the Gallery. I cannot even imagine the grief and horror of their situation. My heart goes out to them and I hope that, in time, they can bring closure to their situations.

In his opening statement, Senator Norris referred to the horrific murder of Declan Flynn in Fairview Park. He is right to say that it provoked a revolt and brought homophobia and the homophobic society we lived in to the fore to the point that we have passed marriage equality legislation.I hope that society has moved on to a great extent and that we would never see the likes of that murder again.

Fianna Fáil will not support this Bill. In the Dáil we have brought forward the Parole Bill 2016, which is awaiting Committee Stage. It is based on the strategic review of the penal policy in July 2014. While conscious that the Law Reform Commission has recommended that legislation should be introduced to provide that a judge may recommend a minimum term to be served by an offender sentenced to life for murder, the review group questioned the extent to which it would be necessary to make that provision in legislation. It is also the view of that group that the sentencing judge may, in any event, make such a recommendation. This recommendation may guide the Parole Board, which Fianna Fáil is proposing to put on a statutory basis, at the review of the prisoner's detention.

The Minimum Custodial Periods upon Conviction for Murder Bill 2017 may dramatically increase the length of time in custody for persons for persons sentenced to life imprisonment for murder, providing for a life sentence with a minimum custodial period of between 25 and 40 years. It raises constitutional issues regarding judicial discretion and it would introduce one of the most punitive regimes in Europe.

Murder is the most serious of criminal offences, as outlined by Senator Coffey. While this Bill purports to recognise the seriousness of the offence by establishing a minimum sentence and a minimum period of custody, it does so in a manner that will establish the State as potentially one of the most punitive in Europe, while departing in a substantial way from existing sentencing and prison policy. The Bill will, in effect, create a hierarchy of murder offences, to which a minimum period of custody of either 40, 30 or 25 years will apply, depending on the circumstances relating to the offence. For example, the offence where the victim is a child would fall within the most serious category offence. Within this category is also the offence involving more than one victim of an act or arson. It is unclear why this is limited to acts of arson and not the murder of multiple victims by other means. Murders involving the use of weapons would fall under a further category subjected to a minimum of 30 years in custody. Other murders not in this category would attract a minimum sentence of 25 years in custody.

There is judicial discretion to reduce the minimum sentences relating to the 25 year custody period. This, however, is restricted in regard to the more serious categories and the 40 year period may not be reduced below 30 years. The 30 year minimum period can only be lowered to a minimum of 25 years. Legal advisers have examined the case law of the European Court of Human Rights and have noted previous legal opinion that material before the court shows clear support that prison sentences should be reviewed no later than 25 years after the imposition of a life sentence, with custodial, periodic reviews thereafter. Section 1 of the Bill is clear that a minimum custodial period will be the minimum number of years' imprisonment a person will serve before being considered for release. Any sentence, therefore, of greater than 25 years imposed under this Bill could not be reviewed at the 25 year mark.

A further difficulty with the Bill is the impact on the role of the Parole Board. Currently, a judge imposes a life sentence on a person convicted of murder without specifying the period to be served. The Parole Board is then responsible for reviewing the sentence and making recommendations around the release. It will do so having regard to the nature and gravity of the offence. Under the Bill, however, 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 circumstances. This is established sentencing practice and in circumstances where the court determines that the sentence takes into account these factors it is unclear how a period of detention beyond that sentence could be supported and what role, if any, the Parole Board would actually serve.

An alternative way to achieve the aims of the Bill would be to proceed with the establishment of a parole board on a statutory basis. In sentencing an offender for murder the court would continue to impose the mandatory life sentence and the Parole Board could then set out the minimum period to be served by persons convicted of murder who can be considered for release by the Parole Board. Fianna Fáil has published a Bill in this regard. It is before the Dáil and is awaiting Committee Stage. The gravity and nature of the offence could then be considered by the Parole Board.

There does not appear to have been any consultation with stakeholders, especially the Judiciary, in drafting this Bill. This is of concern to the Fianna Fáil Group. The legal advice states that a change of this significance would require consultation with the Judiciary and therefore, unfortunately, we cannot support this Bill today.