Tuesday, 15 November 2016
Criminal Justice (Suspended Sentences of Imprisonment) Bill 2016: Second Stage
I am bringing forward this relatively short but technical Bill to address Mr. Justice Moriarty’s High Court judgment of 19 April which found certain provisions of section 99 of the Criminal Justice Act 2006, which provides for the suspension and subsequent revocation of sentences, to be unconstitutional. Suspended sentences are an integral part of the judicial sentencing regime and the criminal justice system in general. They can be used as an alternative to the imposition of a custodial sentence where the court considers that the person might benefit from a second chance and that justice might be better served with the imposition of a suspended sentence. Suspended sentences are a valuable sentencing mechanism for the courts and a deterrent to the commission of further offences since the threat of the original sentence imposed and the inevitable prison sentence remains. A suspended sentence is imposed for a certain time period and subject to a number of conditions, the primary condition being that the person must keep the peace and be of good behaviour. A breach of this condition results in automatic revocation of the suspended sentence.
The statutory regime for the imposition and revocation - essentially, the activation - of suspended sentences is provided for in section 99 of the Criminal Justice Act 2006. The High Court has, however, found the provisions in section 99(9) and(10) to be unconstitutional and these provisions have been struck down. The subsections provide that a person who is subject to a suspended sentence and subsequently convicted of another offence is, before sentencing for that subsequent offence, automatically returned to the court which made the order imposing the suspended sentence for revocation of that order. The difficulty identified by the High Court is that the person concerned does not have the opportunity to appeal the second triggering offence before the case is referred back to the revocation court, resulting in a differing treatment so far as the rights of appeal are concerned. This means that a person could serve some or all of a revoked suspended sentence because of a second offence, the conviction for which may be quashed on appeal. It is necessary, therefore, to amend the legislation to provide that an appeal may be taken in relation to a second triggering offence before revocation of the suspended sentence is considered by the revocation court. An alternative mechanism provided for in subsections (13) and (14) is being used on a case by case basis, pending enactment of this amending legislation. It is appropriate that we use this measure in the meantime which will restore the automatic court-driven revocation process. While this alternative mechanism ensures suspended sentences may still be revoked, it is important from a procedural point of view that the provisions which have been found to be unconstitutional should be revised and replaced in order that the system of automatic revocation of suspended sentences can be restored.
The implications of the High Court judgment have been considered in consultation with the Attorney General and this amending legislation has been prepared to address the particular difficulty identified in order that procedures relating to suspended sentences can operate as efficiently and effectively as possible. The Bill also deals with a number of related matters. I take the opportunity to outline the main provisions contained in this short Bill.
Section 1 clarifies that references to “the Act of 2006” mean the principal or parent Act, the Criminal Justice Act 2006.
Section 2 provides for amendments to section 99 of the Criminal Justice Act 2006 as follows. Paragraphs (a) and (b) are technical amendments and provide for transmission of copies of court orders to suspend sentences by electronic or other means. The amendments clarify that modern means of document transmission can be used.
Subsection (8A)(a) provides that where a person commits a triggering offence during the period of a suspended sentence and is subsequently convicted of that offence, the court concerned will, after imposing sentence for the triggering offence, remand the person in custody or on bail to a sitting of the court that imposed the suspended sentence no later then 15 days after the remand, or, where there is no sitting of that court within the 15 day period, to the next sitting of that court. If for whatever reason the court to which the remand is made does not sit on the date of remand, the person will be remanded to the next sitting of that court held after that day. This provision ensures a person will be remanded as soon as possible once sentence for the triggering offence has been imposed to the revocation court to have the matter of the suspended sentence dealt with.
Section (8A)(b) is a permissive provision which provides that a court may remand a person to a special sitting of the revocation court. This is to cover situations where a special sitting takes place sooner than a scheduled sitting.
Subsection (8B) clarifies that the remand process provided for in subsection (8A) applies following conviction for a triggering offence once proceedings are instituted against the person concerned within a reasonable timeframe following commission of the offence. This is technical legislation. It is important it be enacted in order to provide clarity. Although the provision on which we were relying was perfectly within legal limits, we took the view that we should address the issue identified.
It may be useful at this point to outline the most significant differences between section 99(9) of the 2006 Act and the revised subsections (8A) and (8B). The requirement that the conviction for a triggering offence be handed down during the period of the suspended sentence has been removed. A second key difference between section 99(9) and the amending subsections is the bringing together of conviction and sentence. This bringing together of conviction and sentence for the triggering offence will allow a person to lodge an appeal against a conviction or sentence for a triggering offence prior to determination of the revocation issue. This also means that the court, in considering revocation of the previously suspended sentence, will be aware of the sentence imposed for the triggering offence and will, therefore, be in a better position to assess the gravity of the breach.
A third important difference relates to providing a more workable and realistic timeframe for consideration of revocation of a suspended sentence. As I said, remand to a sitting of the court will now take place no later than 15 days after such remand or, where there is no sitting of that court, within that 15-day period to the next sitting of that court. The notable difference between subsection (8C) and the original section 99(10) which led to the difficulties is that the revocation proceedings will be adjourned pending determination of the appeal process. The adjournment of the proceedings to consider revocation of the suspended sentence ensures the procedural difficulty identified by the High Court is effectively dealt with by allowing a person to appeal conviction or sentence for a triggering offence before returning to the revocation court to have the matter of the suspended sentence dealt with. Revocation of the suspended sentence will not be considered until such time as the appeals process in relation to conviction or sentence for the triggering offence is complete.
The other subsections in the Bill deal with the various issues that arise subsequent to that in regard to the various proceedings. I do not propose to go into the detail of all of the subsections, but it is provided in the speech circulated for those who wish to avail of it, except to say a new subsection (13A) has been inserted which gives the Director of Public Prosecutions a power, similar to that of An Garda Síochána, the prison governor and the Probation Service to make an application to a court to consider revocation of a suspended sentence where a condition under subsection (3) has been breached. This provision will strengthen section 99 by providing for an additional subsection (13) or (14)-type referral to ensure any breach of a condition of a suspended sentence is captured by the section, as is the policy intention.
Two new subsections, (19) and (19A), have also been inserted. These subsections take account of the situation where a person has committed a number of offences and is subject to a number of sentences which are to be served consecutively. Subsection (19B) ensures District Court sentencing provisions are maintained and that the maximum term of imprisonment which can be imposed by the District Court in respect of sentences passed at the same time cannot exceed two years. There are also a number of other sections included in the Bill. This amending legislation is a necessary response to the High Court's finding of unconstitutionality in relation to some of the suspended sentencing provisions. The primary purpose of the Bill is to address the difficulty in relation to the differing treatment so far as rights of appeal are concerned, as highlighted by the court, and to revise the procedure to ensure the suspended sentencing system can again operate efficiently and effectively. I trust that Senators will appreciate the need to bring forward this technical legislation to deal with the issue highlighted by the High Court and clarify the original intention of section 99. I commend the Bill to the House and ask Senators for their support for it.
I welcome the Minister, a former Senator and former Leader of the Opposition in this House, back to the House. Justice is not my portfolio so I am delighted to be able to take this matter on behalf of my colleague, Senator Clifford-Lee. I think another former Senator who is now a Minister will be here tomorrow, so it is great to see all these former Senators doing so well in Cabinet.
We have a few former Cabinet members here. To put the Minister at ease, Fianna Fail supports this Bill, which results from an April 2016 High Court decision declaring unconstitutional the law governing the power of the courts to activate suspended sentences. I welcome the opportunity to speak relatively briefly about the Criminal Justice (Suspended Sentences of Imprisonment) Bill 2016 because the Minister has given us a very comprehensive review of the legislation. The main purpose of this Bill is to amend section 99 of the Criminal Justice Act 2006, which is the power to suspend sentence, in respect of the activation of a suspended sentence in the event of the commission of another offence by a person who is subject to a suspended sentence. The amendments are designed to clarify the procedures to be followed by the courts in such cases. The need for amending this legislation arises from a High Court judgment of 19 April 2016 which found certain provisions of section 99 to be unconstitutional. Mr. Justice Michael Moriarty declared key subsections of section 99 of the Criminal Justice Act 2006, as amended under the 2007 and 2009 Acts, unconstitutional on certain grounds, including those allowed for significantly different treatment of persons before the law as far as their rights of appeal are concerned. In his judgment, he said that the fact that there were weekly challenges arising from the operation of section 99 showed that lay and professional persons involved in the criminal law arena simply do not know at present where they stand and that the striking down of the subsections would affect the operation of the criminal justice system on a daily basis and is likely to lead to immediate challenges by affected persons. It was claimed that legislation will have to be urgently enacted to remedy the situation.
This Bill provides that where a person who is subject to an order for a suspended sentence commits a subsequent "triggering" offence during the period of the suspended sentence and is convicted of that triggering offence either during or within a certain period of the suspended sentence, he or she will, following sentencing for the triggering offence, be returned to the court which imposed the order for the suspended sentence to have the matter of activation of the suspended sentence dealt with. It also provides that where a person is returned to the court which imposed the order for the suspended sentence, the court will revoke the order and activate the suspended sentence unless it considers, in all the circumstances of the case, that it would be unjust to do so. The Bill further provides that where a person appeals his or her conviction or sentence for a triggering offence, the court which imposed the order for the suspended sentence will not consider revocation of the order and will adjourn the proceedings until the appeal for the triggering offence has been determined. Under the Bill, the sentences of imprisonment will be served consecutively with the suspended sentence consecutive to the sentence for the triggering offence and where a suspended sentence is activated in part, a new order may be made suspending the remaining part of the suspended sentence. In cases where a suspended sentence is imposed by a court on appeal from another court, the court from which the appeal was taken will consider revocation of the suspended sentence. I appreciate the Minister may have said much of this already but I want to put on the record that my party has considered the Bill and we are happy to support it going forward.
I also welcome the Minister to the House. She held the position of Leader of the Opposition prior to her entering Dáil Éireann and the heights of ministerial power. She brought much to this House and is bringing a lot to it as regular visitor. This legislation is simply a technical amendment that is necessary as a result of Mr. Justice Moriarty's ruling in the High Court this summer. In respect of what he identified as a difficulty in the legislation, when it is analysed in the cold light of day, it makes absolute sense. Natural justice needs to and will prevail and the constitutional issues highlighted in the court case will be dealt with when this technical Bill, or Bill of a technical nature, which is probably the best way to put it, passes through the Houses. I do not think we even need to debate it because all of us are agreed that this is necessary. If anybody on a suspended sentence is charged with a further crime, natural justice must prevail and the option of appealing must be available. This should not interfere with the issue of the suspension of a sentence until such time as due process has been "maxed out" as such.
We have a duty to adopt this legislation. I commend Senator Horkan, my old college friend, and his adviser in justice matters, Senator Clifford-Lee, for seeing the sense in this and not even engaging in debate because it does not warrant debate. It makes absolute sense. With that, I have nothing further to say except to again welcome the Minister to the House. I hope we will not delay her here because she has a tremendously busy schedule.
The Minister will be glad to hear that I do not think I will need to use my eight minutes either but I will put on record our position. I welcome the opportunity to speak on this important Bill. As has been said, this Bill essentially amends the legislation to activate a suspended sentence in the event of the commission of another offence by a person who is subject to a suspended sentence. This is necessary as a result of a decision by the High Court earlier this year. This Bill means that where a person is convicted of an offence during the term of his or her suspended sentence, he or she may be returned to the court which imposed the original suspended sentence to have that activated. Where the person is returned to the court, it will, unless it considers it unjust, activate the suspended sentence and the sentence will be served consecutively.
We support the Bill in so far as we believe that the constitutional matter that gave rise to the decision that required it needs to be rectified. However, we are concerned about compelling the court to sentence a person convicted to a consecutive sentence and believe that this is close to a form of mandatory sentence. As a result, we believe that this should be amended to allow the sentencing judge the flexibility to decide whether the sentence should be served concurrently or consecutively. Sinn Féin believes that suspended sentences should be used by the courts, where appropriate, as an alternative to custody. The use of suspended or conditional sentences should be placed on a statutory footing and consideration given to creating more specific guidelines regarding their use. We believe that the Minister should use this opportunity to look at sentencing as a whole. In particular, consideration should be given to introducing a legislative requirement, save for exceptional circumstances, for its use for the types of offenders currently sentenced to custody for a period of one year or less. Conditions imposed in respect of sentence suspension should be in all cases preventative as well as restorative, where possible and appropriate. We have a concern regarding the proposition that a person returned to serve an activated part of their suspended sentence may have to do so consecutively in respect of the other sentence. While we are in agreement that there must be a facility to have a sentence activated, we are unconvinced that removing flexibility from a judge regardless of context is necessarily the most appropriate way to achieve this.
While we have the opportunity, let me place on the record our concerns regarding mandatory sentences of a different nature as this is something that arises time and again in the course of our work here and is very often something that is proposed by other individuals believing that this is a mechanism to reduce crime. It has previously been proposed that mandatory consecutive sentences for certain specified bail offences be introduced. However, the Law Reform Commission was unequivocal in its finding in 2013 that it has not been illustrated that mandatory or presumptive sentences for repeat offending achieve their intended sentencing aims and, as a result, that these regimes are likely to reduce criminal conduct. The commission recommended that the use of mandatory or presumptive minimum sentences should not be extended to other forms of repeat offending. The strategic review of penal policy group was equally clear in its finding that there is concern as to the impact of presumptive minimum mandatory sentences on prisoner numbers as well as questions as to the extent to which these sentences have contributed. The Irish Penal Reform Trust also published a paper in 2013 on mandatory sentences which concluded that mandatory sentences were ineffective as a deterrent, gave rise to injustice and were not cost-effective. Given the lack of evidence that mandatory sentences reduce crime and the consensus of both law reform and penal policy experts that there should be no extension to existing presumptive schemes, there appears to be little rationale for the inclusion of such a provision. We support the Bill to allow the activation of suspended sentences, however, we believe that sentencing guidelines for the courts would be more appropriate than a mandatory consecutive sentence. We will allow the Bill to go forward but we wish to see our concerns addressed. Otherwise, we would need to re-evaluate our support for this Bill. At this stage, I am sure the Minister is coming here with an open ear and is certainly prepared to listen to some of these concerns.
Furthermore, it is our view that a conversation about the increasingly carceral nature of society is overdue. In most cases, prison does not work if the goal is to eradicate or deter crime. We have had prisons for hundreds of years and we still have crime. To quote Michel Foucault, "there is no glory in punishing."Clearly, in the sentencing guidelines it would have been better to take action State-wide and at local level to prevent crime from happening in the first place. What is necessary from the point of view of the Government, if it is serious about reducing crime levels, is treating violence and intimidation in the community as a public health concern, introducing evidence based drug laws, focusing on prevention and early interventions to address inequalities and systematically targeting investment in communities, while ensuring ex-offenders have access to secure employment and housing. In the absence of these initiatives, we will continue to tinker at the edges of actions that talk about building a better society rather than getting on with the business of doing it.
I welcome the Tánaiste and Minister for Justice and Equality. She is always welcome, particularly when she is commencing Bills, for which I thank her. It is good to see this Bill starting life in the Seanad. Like others, I am happy to express the support of the Labour Party for the Bill which is technical in nature to address the High Court judgment of April 2016 of Mr. Justice Moriarty. It should be noted that in his judgment he referred to the relatively chequered history of section 99, the fact that it had been amended twice and the subject of criticism from a number of courts at different levels, particularly by the late Supreme Court judge Adrian Hardiman who in 2015 spoke about the section as having given rise to innumerable practical difficulties and problems and being in need of urgent and comprehensive review. The difficulties with the provision had been signalled. There had been litigation prior to the six joint cases that were the subject of the judgment of Mr. Justice Moriarty. In one of these cases Mr. Justice Hogan, in the High Court in 2014, had given a very clear rationale, on which Mr. Justice Moriarty's judgment was based in striking down the relevant provisions of section 99.
As the Minister said, the Bill seeks to address the core issue, namely, discrimination. According Mr. Justice Hogan and Mr. Justice Moriarty, what was wrong with section 99 was that it offended the principle of equal treatment of similarly situated persons within the criminal justice system. Mr. Justice Hogan made the point that, as far as the rights of appeal were concerned, the provision allowed for significantly different treatment of otherwise similarly situated accused persons. It seemed to preclude a right of appeal for those in respect of whom a suspended sentence was to be revoked. The Minister described this as a procedural difficulty identified by the High Court, but, to be fair, it is more than that. It was a very fundamental constitutional difficulty that the court had identified, that is, the effect of section 99. As the Minister said, the constitutional breach identified by the High Court is being dealt with in the Bill by allowing the person concerned to appeal the conviction or sentence in the triggering of the second offence before he or she returns to the revocation court to have the matter of the suspended sentence dealt with. That is very welcome.
In the broader context, I welcome any provision that make the operation of suspended sentences more effective and workable. The Minister will be well aware of the report of the Joint Committee on Justice and Equality on penal reform which predated the strategic review report of the expert group, to which my colleagues have referred. In our 2013 report, produced under the chairpersonship of the Minister of State, Deputy David Stanton, we recommended that significant penal reforms be adopted by the Government, in particular a decarceration strategy with an intention of reducing the prison population by one third over ten years. We were cognisant of the fact that we had heard from numerous experts, organisations and statutory bodies, including those with first-hand experience of working with prisoners and ex-prisoners every day. The consensus that emerged in the hearings was that prison was not working to prevent reoffending, protect victims of crime or keep society safe. It also emerged that prison overcrowding had had a pernicious effect on the conditions in which inmates were living and any effort to try to rehabilitate them. We were particularly concerned about end-of-sentence strategies and the fact that prisoners were being released in an unstructured way with a lack of real sentence management. Our recommendations sought to take on board what had been done in Finland, where effective measures had been adopted through a change in political decision-making. It had adopted a strategy that had led to reduced prisoner numbers, from about 4,000 in 2005 to 3,000 in 2013, in a jurisdiction with similar numbers to those in Ireland. We believed a similar policy should be adopted here. We spoke about the need to increase the use of community-based sanctions, increasing standard remission from one quarter to one third and introducing incentivised remission schemes and legislation for structured release, temporary release, parole and community return.
We are very heartened to hear about some of the initiatives being taken by the Irish Prison Service, including on community return. They have shown strong measures of success in addressing and reducing recidivism rates. These measures are welcome and the Irish Prison Service was very receptive to some of the recommendations we had made. It was among the bodies that had given evidence to us.
Overall, we set out recommendations that we should seek to achieve a penal policy which would see prison as genuinely a sanction of last resort and use alternative means of sanction and sentence for those convicted of minor non-violent offences. That was the overarching theme of the report. Crime rates and prison numbers have fallen, which is very welcome. The figures show that there are just over 4,190 people in prison today, including those in custody awaiting sentencing and those on remand. We still need to ask ourselves, however, whether all of these people need to be in prison and whether their imprisonment is serving any purpose, particularly where they are serving short sentences for minor non-violent offences. We should consider whether, in the case of such minor offences, the interests of victims and society at large might be better served by focusing on rehabilitation efforts in the community rather than simply locking people up. Suspended sentences have an important role to play in a more enlightened and progressive penal policy, as we discussed at the committee. I understand the Department and the Irish Prison Service are embracing that view. I look forward to the Bill being part of a package of measures to try to achieve a more enlightened policy.
I, took, welcome the Minister. I also welcome the Bill which responds to the High Court decision of Mr. Justice Moriarty in which he found part of the Criminal Justice Act 2006 to be unconstitutional. The Bill aims to ensure an individual who receives a suspended sentence will find that it will not be triggered, except in accordance with due legal process, as provided for in the Constitution. No one should be deprived of his or her liberty without being subject to the checks and balances of the criminal justice system. Apart from providing comfort for an individual facing the loss of his or her liberty, these checks and balances allow us to have confidence in the system. The general public must know that a person will only be incarcerated when it is just. The judgment was handed down last April and it is important that we pass the Bill.
There is general consensus on the Bill. I ask that, with the Bill, we consider other aspects of the criminal justice system. Senator Ivana Bacik has been involved with the Law Reform Commission and referred to a report produced in 2013. The criminal justice system is not just about reforming people; it also acts as a deterrent and ensures people have a sense of justice. Victims and those who belong to them are important, but there must also be a balance. We have to be very careful. When an order for incarceration is made or it is decided that someone is to be sent to prison, it must mean something. These orders need to be followed through. That consecutive sentences should not be pursued is not something with which I would agree. I highlight the murder of Sharon Whelan, which case has been before the Court of Criminal Appeal and which has been mentioned in the media. She was raped and murdered in her home, with her two children, on Christmas Day 2008. Following the initial trial, the man convicted of the murders received three consecutive life sentences. Arising from the appeal last Friday, his sentence was reduced and the sentences will now run concurrently. The criminal justice system is not very nuanced. As I understand it, the ruling means that after seven years the man convicted will be able to go before the Parole Board to have his pathway to freedom set out.The individual in question may serve a sentence of as little as 12 years, which would be devastating to the Whelan family. It offends everyone's sense of justice that such a short sentence could be served for taking three lives.
A report produced by the Law Reform Commission in 2013 suggested that mandatory life sentences remain in place and judges rather than parole boards set out minimum terms of imprisonment in such cases. Such a change would make the system much more transparent because the judge in the case would also set out the reasons for the minimum sentence. The Irish Penal Reform Trust, which advocates for prisoners' rights, also sees merit in changes that would provide for differing circumstances to be taken into account as mitigation or factors making a case more serious.
The Whelan family are not the only people affected by these types of cases. Sharon Whelan's brother, John Whelan, is now the head of AdVIC, an organisation that advocates for victims' rights. Society cannot stand over this type of sentencing because it sends out the wrong message. While it may be considered progressive to speak about rehabilitation, people must want to be rehabilitated. Another aspect of sentencing is the seriousness of the offence that has been committed. The prospect of a person who has committed murder being released after 12 years is sickening to the core.
The report of the Law Reform Commission also notes that people who commit murder do not have an incentive to plead guilty. Only 10% of accused persons in murder cases pleaded guilty in 2015. This means the State and families incur legal costs and expenses and most people do not plead guilty as doing so is of no benefit to them. This is wrong and the system needs to be reformed to address this issue.
While the Minister has many issues on her plate, the case of the Whelan family offends everyone's sense of justice. I would like justice to be served for the family and other families in similar cases. People can rehabilitate all they want but if they take a life, they should serve more than 12 years in prison. While I appreciate that the Minister may wish to have these matters considered further by the Joint Committee on Justice and Equality or in another forum, reports have already been produced on the issue. It is important also that victim and prisoner groups agree that reform is necessary.
Life should mean life and failing that, judges in murder cases should be able to specify minimum sentences. Murder cases are harrowing and it is wrong that concurrent sentences can be imposed in a case where three lives were taken.
I am a little concerned by the lax attitude to justice shown by Sinn Féin Senators. The view that threatening and intimidating behaviour should not be viewed as criminal would not be accepted by reasonable persons. We should ask people who live with such behaviour what their views are on the issue. If people cross a line-----
I thank the Acting Chairman for his forbearance and for allowing me to speak. This is good legislation and I ask the Minister to address the issue of a minimum term for murder and reform the system to bring some justice.
I thank Senators for their support for the Bill. As several speakers noted, it is short but important legislation, which specifically addresses the High Court finding of unconstitutionality in respect of certain provisions relating to the revocation of suspended prison sentences. It does so by explicitly ensuring there is an opportunity for an appeal against conviction or sentence for a triggering offence prior to consideration of revocation of a suspended sentence. There are other procedural changes to related elements of the suspended sentencing regime to enhance its operation and effectiveness. The overall effect of this amending legislation is to ensure the procedural and sequencing aspects of the suspended sentencing system can operate correctly in the interests of the courts system and those who come before it. Senators have recognised this in supporting the Bill, for which I thank them.
Senator Mulherin raised a particular case, which I do not propose to discuss, other than to point out that the average time served for a life sentence has been increasing in recent years and currently stands at 17 or 18 years. I recognise the circumstances the Senator describes in respect of a particular family. It is important that we are aware of such issues and that I give serious consideration to the views of victims. The victims directive is coming through and we will have victims legislation very shortly.
Various reports have been produced on mandatory presumptive minimum sentencing, an issue on which views are divided. I will take heed of the points made by Senator Mulherin and revert to her on some of them.
In developing sentencing policy, it is very important to strike the right balance to achieve an effective and fair sentencing system. In general, the right to go before a parole board after serving seven years of a sentence does not necessarily lead to release. The parole board has a very important job to do in making a risk assessment and examining all factors when taking a decision on parole. Many people come before the parole board multiple times without being released. The recommendation of the parole board depends on the risk assessment and the views of a victim's family play an increasingly strong role in the board's decision making.
I thank Senators again for their contributions.