Barry Ward (Fine Gael) | Oireachtas source

Following on from what Senator McDowell said, I have no difficulty with criticism of the judgment, conscious that Senator McDowell from the outset acknowledged the supremacy of the Supreme Court and the reality of the fact that the Minister, the Executive and, ultimately, the law must follow what the Supreme Court has said. I do not necessarily dispute what the Senator has said. Undoubtedly, the Wayne Ellis case was a complex one. I am not sure how much the parsing of arguments in this House advances the matter before us today, but I absolutely agree with the Senator when he says that one of the purposes of the decision made in the Wayne Ellis case was to put a shot across the bows of the Oireachtas to mark out the importance of judicial discretion.

As it happens, I agree 100% with the Supreme Court on that front. There is a habit sometimes in politics for us to want to push the penal provisions in legislation in a particular direction and to say that we are going to clamp down on a particular kind of offence and hit this kind of offender. That is okay for politicians, but it fails to recognise that judges are highly qualified and highly experienced people who know what they are at. As a Legislature, we should have faith in their ability to hit on the right sentence for any given offender. I frequently get comments from people who contact me about something they have read about in the newspaper concerning a criminal case where somebody has got a sentence that they feel is unjust for whatever reason. I am not necessarily saying that those people are always wrong, but what I always say to them is that the case was in the newspaper because it was an outlier, controversial and exceptional.

What is not in contained in the newspapers in respect of such cases is the detail of everything that was said in court, everything that was before the court and everything that the judge saw, heard, read and understood about the offender, as much as about the offence, and the effect on the victim, if there was an identifiable victim in a case. I always caution people against deciding that a sentence is not hard enough for a person because of X, when in fact they cannot possibly have a full understanding of the factors that contributed to the final decision regarding a sentence. The person who does have a full understanding in such instances is of course the sentencing judge who sat in court on the day, and who saw and heard the people concerned. In accordance with the law and the procedures laid down in court, which are there to protect all of us, the judge will have heard exactly what factors come to bear on the sentence.When handing down sentences, judges invariably set out in some detail the factors they took into account, including mitigating factors that lowered sentences and aggregating factors that increased them. They are now required by dint of decisions of the Court of Appeal in particular to set out where on the range of sentences available to them the offence should lie, where their starting point is and what they are applying in respect of aggravation or mitigation, for example. Much more so than even ten, 15 or 20 years ago, there is now considerable clarity as to the exact factors that have a bearing on judges' decisions when they hand down sentences. This is obviously for defendants and persons who are convicted but it is particularly for the victims of offences. We have made great leaps forward in that regard such that a victim sitting in court or learning after the fact has much greater insight today than a decade ago as to the exact reason the sentence was arrived at.

In addition, there is a provision for the DPP to appeal against the undue leniency of a sentence. If she feels that is inappropriate, there is jurisprudence set out in this regard. We, as Members of the Legislature, should be marking the importance of judicial discretion and of having trust in our Judiciary. In Ireland, perhaps more than in any other common law jurisdiction in the world, we have a Judiciary that has served us incredibly well. We do not see a litany of miscarriages of justice in this country. We do not see people being convicted unfairly in the way that can occur in other jurisdictions, and that is because the rule of law stands. It is because judges respect the law and apply it as it is handed down from these Houses or interpreted by the superior courts, as the case may be.

I do not disagree specifically with Senator McDowell. I recognise his right to say what he has to say, but I do believe it is important for us to acknowledge what the court has said about the Ellis case.

I want to raise another issue. I wish to raise it under section 2 although I could raise it under any section.