Michael McDowell (Independent) | Oireachtas source

I welcome the Minister to the House and I welcome sight of this legislation. I also welcome the amendments that are being proposed on sentencing guidelines. Of course there is a difficult balance to be struck between the administration of justice, which is the prerogative of the Judiciary, and the independence of the Judiciary on the one hand, and the entitlement of the Legislature to have an input into the outcomes of penal policy in the State on the other hand. The use of the judicial council as a body which generates guidelines for sentencing is both welcome and long overdue. I remember being involved in a case where the Supreme Court had to adjudicate on a very light sentence, which might have been a suspended sentence, that was given in a rape case and the court attempted to establish some rough principles applying to the sentencing of rape cases. Apart from that, there has been very little judicial consideration of the relative seriousness of different kinds of cases. Therefore, it is timely that we should ask the members of the Judiciary to collectively put their minds to establishing broad guidelines for the guidance of individual judges in individual cases, bearing in mind that in every case the facts, the nature of the convicted person and the outlook for the rehabilitation of the convicted person differ. Senator Bacik might prick up her ears at what I have to say about guidelines. I am astonished at the unconscious gender bias in the imposition of sentencing. I have noticed all my life that the Judiciary tends to take a certain view. It might be based on the proposition that a convicted woman is less likely to reoffend than a convicted man, but it is remarkable that there is a consistent difference in the severity of sentences handed down to men and women, although perhaps it is sensible. I do not argue that it is indefensible but it strikes one from time to time. There are some offences I would consider serious, such as the making of a false report of rape against a man, but in the rare case when that is prosecuted to conviction, I have noticed that the Judiciary holds back from the enormity of the crime for which the conviction has taken place, namely, where an innocent person has been put on trial or through the criminal process on a knowingly false complaint, which is a serious matter. In my own days in practice, I always noted that female shoplifters, for some of whom I appeared and some of whom, I regret to say, were repeat offenders, seemed to be subject to a different type of sentencing philosophy.

To those who look to the legislation in the hope that there will be more severe sentencing and that the Judiciary will become more severe in its sentencing, we must remember that imprisoning a young woman or young man - it is more likely to be a young man - is a disaster for him, his family and society. Given that our prison system is so deficient in rehabilitation, which we must work on collectively as a society, it is a disaster for society in many cases that a person has been sent to prison. The first principle that must apply in any of these guidelines, especially in respect of the District Court, is a philosophy of avoiding imprisonment where possible because it is easy for a judge on an afternoon to sentence a young man to six months in prison for violence or whatever, but in many respects it will be the destruction of that young man's life forever, as well as of the potential of that young man's life to be a useful citizen through employment forever. We must be careful, therefore, when we demand severe penalties, that we are conscious of the absolute importance of using imprisonment as a last resort in most cases, although there are many cases where it must be imposed, bearing in mind the severity of the offence.

I trust that the Minister will not take my final point in any way as an attack on his Department or his record, because it applies across the board. Our prison system is deficient not only in its capacity to rehabilitate but also in its physical capacity to hold on to prisoners who are sent there by the courts. I will not raise the idea of the revolving door because it is an easy, populist argument to make. Nevertheless, we have significant problems with prison capacity, and those who have expectations that sentencing guidelines will inflate or raise the bar for prison sentences should remember that there is limited prison infrastructure in Ireland, which is currently incapable of dealing with an increasing number of persons convicted for sentences carrying life imprisonment and so on.

I agree that Sinn Féin was correct to take the view that this legislation was the opportunity to address the sentencing guidelines issue, and I am glad that the initiative the party took has resulted in the series of amendments which are to be tabled by the Government to the legislation.