Michael McDowell (Independent) | Oireachtas source

There is nothing that Senator Ward said with which I disagree at all. I know, from having been where he is now and from having served as an Opposition Deputy, a Minister and Attorney General, that there is always a clamour for minimum sentences. It is said that if you hit a Garda, you must go to jail for a year, for example. Minimum sentences go down well with some parts of the media. At the time we were trying to address this matter, we were trying to deal with gangland crime. That was what we were worried about. Fellows who produced sawn-off shotguns on day one could do three years and, lo and behold, appear again with a Kalashnikov or whatever. We wanted to send a message to them that if they wanted to carry out firearms-related offences on an ongoing basis, they faced a very serious sentence of the kind in question. That was the motivation. It was not about appealing to the newspapers or unthinking bar stool critics. The purpose was to send a message to those who had one brush with the use of firearms. It was a very serious matter when I was Minister for Justice. I was the guy who mistakenly talked about the dying wasp in respect of gangland offences. The offences were a very serious matter. Bearing in mind facts of the circumstances that gave rise to the sentence that was challenged, it is pretty alarming that somebody in those circumstances should not feel the full weight of the law on them.

I want to make one comment on what Senator Ward said about the progressive disqualification provisions. I believe the Supreme Court would probably apply the double construction rule and say the disqualification of a driver is not a penalty or punishment in itself but a consequential decision by a court. Let us be honest about it among ourselves: it is a punishment. It is undoubtedly a punishment to put somebody off the road for five years, especially when it wipes out his or her capacity to drive a lorry or taxi, or to work as a travelling salesman or otherwise. It is codology to say it is not intended to be punitive. It is the consequence that is held out in front of drink drivers. They do not care about the crime and do not really believe they will end up in Mountjoy unless they are completely drunk and kill somebody or injure somebody badly, but disqualification is the primary factor. I have no doubt, however, that the court system would come to the view that this does not fall foul of the arrangement in question because it is not a judicial punishment per se.

I cannot remember the time of the change regarding the right of appeal against a sentence but I believe it existed at the time in question. In legislation we passed in this House subsequently in respect of the Judicial Council, provision was made for sentencing guidelines. Presumably, they are supposed to be mandatory in respect of the lower courts provided they have some flexibility in them. They comprise guidance to judges as to what should happen. Let me outline what interests me in that respect: supposing the judicial guidelines provided something that we all said was a bit rich or too light, or supposing it was said that for a second offence of rape there should be a sentence of eight years, at a minimum, we might say the sentence should be far longer and that it should be 14 years, at a minimum. In such circumstances, can the Oireachtas do nothing and must it remain absolutely silent when it considers judicial guidelines on sentencing adopted by the Judicial Council whenever they are, in fact, promulgated?I think we will be waiting for some time for them to appear. Can the Houses of the Oireachtas say nothing about the guidelines? Are the Houses precluded from saying that hey are inappropriate? This is something that would also have to be considered.

Going back to the basic point, all I am saying is that the separation of powers was clearly in contemplation when the late Rory Brady advised the Department of Justice. He allowed for the escape valve that the section would never apply if it produced what the court considered was an unjust result, without qualification. It was absolute. Therefore, I cannot see how this could possibly have fallen foul of the Constitution if the double construction had been applied. I will leave it at that.