Wednesday, 22 November 2017
Minimum Custodial Periods upon Conviction for Murder Bill 2017: Second Stage (Resumed)
I would like to recognise the presence in the Gallery of the families of people who have been murdered. It is, for them, a very shocking thing and there is no remission whatever from the sentence under which they must live. Murder is a very shocking occurrence. It revolts every decent person in society. I have had a nightmare once or twice in which I accidentally killed someone and tried to hide the person's body in a black plastic bag. I remember the feeling of utter shock at the idea of taking somebody else's life.
I also recall other situations. I remember very well the case of Declan Flynn, who I knew but not terribly well. He was a young gay man who was murdered in Fairview Park and the judge just let the people off, with no penalty whatever imposed. The case sparked a revolt among the people of Ireland and very substantial marches took place.
This is a very important Bill. It should be allowed to proceed to Committee Stage. It is only concerned with first degree murder and people who are convicted of that offence. We have mandatory life sentences for murder but they are never served. According to the figures supplied to me by Senator Marie-Louise O'Donnell, in the 1970s and 1980s the average term served by convicted murderers was seven and a half years. That is astonishing when we think of comparable sentences for other offences. It is very shocking. The position has changed, however, and the average time that a person convicted of murder serves in this country now is 17 years. However, he or she is eligible to come before a parole board after a mere seven years. A parole board is made up of political appointees, civil servants and so on.I just do not think this is important. This Bill will give the judge much more flexibility and allow him or her to impose the appropriate sentence. There will be a minimal custodial period to decided upon, up or down, by the court.
Ireland is full of maximum sentences for offences that are never met. They are on the Statute Book but they never come into operation. Society and murder families want sentences that reflect our absolute horror and revulsion at the crime of murder because as it stands a life sentence for murder does not mean life. The court needs to have a more defined and greater role in sentencing rather than a blanket mandatory minimum sentence. We need greater certainty for sentencing for the offence of murder and prison sentences that are of sufficient length to deter criminal activity and express society's horror at the taking of a human life.
This Bill will introduce a regime similar to the one that already exists in the United Kingdom. This is one model where we can follow the example of the United Kingdom to our advantage. Under the Bill, discretion would still be available but we would be operating from a set of tariffs and only with transparent and predetermined criteria. Minimum tariffs and sentences are critical if we are to achieve justice for the victims' families and the wider community.
Another situation to be addressed is the question of consecutive, as opposed to concurrent, sentences. There is a tendency now to grant concurrent sentences in a case of the murder of more than one person. A situation that has not been referred to in the debate so far arises where somebody who has committed multiple murders is tried on only one charge. That leaves the families of the other victims dangling. There is no closure for them at all. I have had a brief conversation with the families in the Gallery whose grief I greatly respect. They made the point that there is no closure anyway for any of them. There is never closure. I am repeating something that has been said on many occasions - it is a life sentence for those who are left behind. The practice of giving concurrent sentences should be re-examined. There may be a case for it in certain situations but we need to be very careful. If two lives have been taken, surely sentencing should reflect this.
If this Bill goes through, and I very much hope it does, judges will be able to exercise discretion for the first time when it comes to murder. It is a very tragic and complex situation, one which this House is wise to take under consideration, and I am grateful to Senator Marie Louise O'Donnell for bringing this important matter to the attention of Seanad Éireann. I appeal to the Government not to vote this Bill down, but to allow it go to Committee Stage for further consideration. If there are defects in the Bill, it can be amended. The Gallery is full of the relatives of people who have been murdered. This is a situation that Seanad Éireann must take into account.
I also welcome the opportunity to make a contribution on this Bill and to the debate. Many Senators have given perspectives on it. I join Senator Norris in recognising families in the Gallery who have suffered loss due to murder. All of us can only imagine the huge grief and loss those families have had to live with not just at the time of the horrific event, but during the very trying court cases that followed, hearing the witness statements and all that is associated with the case. They have to live their lives after the event, knowing that the perpetrator is in prison for some time.
When somebody is given a life sentence for first degree murder, the public and anybody who is aware of such a case expects that the sentence is served. Even objectively, for a person not directly affected by the case but as a member of the public, it is very frustrating and worrying to discover that due to a decision of a parole board, a life sentence is shortened for whatever reason. That is why as a Government Senator I support the general thrust of this Bill.
When the courts have gone through detailed investigation, the jurors have made their recommendations and the judge has handed down a decision, there is a fair expectation that the sentence would be served. When I was growing up in the 1970s, a murder appeared on all the main news bulletins, and it was spoken of at every door. I am concerned that as a society we have become somewhat desensitised to the word "murder". Murders happen on a weekly basis in this country. It is of concern to me as a parent of young children that the same hurt and frustration is not being felt by society when it hears the word murder as it was in my day. I remember hearing about the murder of a garda. It was a very serious offence when I was growing up, and it is still a very serious offence. The life of a garda, one of the custodians of law and order in this State, has to be protected but, in the same way, the life of a person or a citizen of this country has to be taken seriously.
I commend Senator Marie Louise O'Donnell on introducing this Bill because it is important that we debate these issues in a public forum such as the Houses of the Oireachtas. It is important to discuss people's concerns when they read that someone who was sentenced to life imprisonment is out because of a parole board recommendation.
I understand how legislation works. This Bill may not be perfect, and I ask the officials of the Department of Justice and Equality to engage with the Senators who proposed the Bill. If this Bill does not address their concerns, perhaps the Minister of State could bring forward other legislation that they can support and that addresses their concerns. I understand the Government may not be supporting the Bill, but I emphasise that when a sentence is handed down by the courts of this land for a serious offence such as murder, the general expectation, after a fair trial has been heard, is that the person must serve that life sentence. I understand that parole boards sit and there is a role for them. My view is not right wing or ideological. When I was a child, murder horrified me, my family and my peers. I am sure it is the same for everybody else. We cannot allow murder to become a lesser degree crime in the statutes of this State. There is strong merit in the thrust of this Bill.
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.
I thank Senator O’Donnell for bringing this legislation before the house, and her passion in making this case on behalf of people who have lost a friend or loved one. I welcome and commend the families and their representatives for coming forward and making the case that our judicial system, as it stands, is not adequately dealing with sentencing for murder.
At the moment, a murder conviction in Ireland carries a mandatory life sentence. Many convictions, however, result in early release with the average custodial sentence coming to 17.5 years. It is important to remember that after release, that person can be recalled to prison at any time if they violate certain conditions. The life sentence does carry for the rest of the person’s life. The issue is what proportion of that time should be spent in prison.
As it stands, this timeframe is determined based on a number of factors relating to the specific circumstances of the case. In presenting this Bill Senator O’Donnell has made an important point that the uncertainty over these factors and the corresponding length of the sentence can put a huge degree of stress on families. We should always keep that in mind. This issue was raised by the Law Reform Commission review in 2013, when it recommended that a court should have the capacity to recommend a minimum term to be served. This is an important legal context to the Bill, and we should take this recommendation seriously.
There are aspects of the Bill that raise serious concern. The minimum sentence would be set at either 25, 30 or 40 years, which seems quite severe. It has been suggested that this would be one of the most punitive measures in Europe. The UK has set the limits at 15, 25 and 30 years, for example. I would like to see further debate as to why the lower limit of 25 years was chosen. As was mentioned during the debate in February, the 2013 Law Reform Commission review suggested that a judge could recommend a minimum sentence, which would then be taken into account by the Parole Board.
In general, as a member of the Joint Oireachtas Committee on Justice and Equality, my outlook on criminal justice matters is to emphasise rehabilitation. That is in no way to diminish the heartbreak suffered by victims in particular cases, but to ensure that we take a balanced approach that considers the wider impact on Irish society and considers the specific features of the case at hand. With careful consideration we can reconcile the principle of rehabilitative justice with the rights of victims of serious crime. The Irish Penal Reform Trust has been helpful in providing this perspective and has said that it is resolutely against mandatory sentencing, that it is a blunt instrument that always results in unequal justice and that there is scant evidence, national or international, that mandatory sentencing is effective in reducing crime. This evidence base concerns me, and I think we would need to see further debate on that specific point. Similarly, I am concerned that mandatory sentencing could see an increase in the prison population, as has happened in the US, or more guilty pleas to avoid minimum custodial periods.
I welcome the aspect of the Bill which seeks to bring clarity on the operation of parole boards. Currently, the question of release is removed from the judge’s hands and is handed over to a Parole Board after seven years of the sentence. Concerns have been raised about the transparency of these decisions and the stress this has caused grieving families. I would like to see discussion on how we can bring greater transparency to this process. For example, it was raised in February that non-statutory sentencing guidelines could be outlined for the Parole Board to take into consideration.
While I have concerns over the severity of the Bill, it raises several important questions about our judicial system and highlights areas for consideration and reform, such as the decision to begin parole hearings after seven years and the transparency around any decisions made. These areas could be considered in greater detail on Committee Stage, where amendments can be tabled and the finer points can be outlined and altered.
I commend Senator Colm Burke's point that while he was opposed to the Bill when first presented, having listened to the debate and the proposals made, he did not want to close the door on it immediately. The Minister of State, Deputy Stanton, made the same point that consideration of the Bill on Committee Stage could see it improved or provide an impetus for Government policy.I agree with him on this and support the Bill going forward to Committee Stage for detailed analysis and scrutiny.
I welcome the Minister of State to the House. I also welcome the families to the Gallery and thank Senator Marie-Louise O'Donnell for her work on this debate and for challenging us in our approach here today. Senator Black made reference to restorative justice, to the role of rehabilitation in prisons and to how we see those who have been incarcerated. I believe that we should all support the general thrust of the Bill. Nobody wants to stray into the realm of interfering with the Judiciary, which is an independent pillar from us. I do not agree with Senator Clifford-Lee's comment with regard to consulting with the Judiciary. We are the Houses of the Oireachtas.
I accept that Fianna Fáil has a Bill and I have no problem with that but I think that we, as Members of this House, must engage in the debate on this. I always find the Minister of State to be very accommodating and he made a very practical suggestion today that the Bill be sent to the justice committee. I know that pre-legislative scrutiny has increased but it is disappointing that that committee has not yet dealt with the matter.
Senators Norris and Clifford-Lee spoke about Declan Flynn, whose murder set off a whole new revolution in the gay community. We should all go back, meanwhile, to Senator Coffey's point about murder. I always remember the case of a person who was killed in a house up at the top of Spur Hill back when I was a child. We were afraid to go to bed for nearly six months afterwards, so abnormal and horrific was the event. I can have no idea of the sense of loss, pain and frustration endured by the families sitting in the Gallery today. Like all of us, however, they have expectations that justice be served. This Bill is very important and I hope we do not see it disappear into the ether today. The Government is opposing it and I understand the reasons for that. There is huge merit in what Senator Marie-Louise O'Donnell is bringing forward here.