Tuesday, 2 April 2019
Judicial Council Bill 2017: Committee Stage
As amendment No. 2 is a physical alternative to amendment No. 1, amendment No. 6 is a physical alternative to amendment No. 5, amendment No. 17 is a physical alternative to amendment No. 16, amendments Nos. 19 to 21, inclusive, are physical alternatives to amendment No. 18, amendment No. 23 is a physical alternative to amendment No. 22, amendment No. 26 is a physical alternative to amendment No. 25, amendments Nos. 29 and 30 are physical alternatives to amendment No. 28, and amendments Nos. 40 to 44, inclusive, are consequential on amendment No. 39, amendments Nos. 1 to 6, inclusive, 8, 10, 11, 14, 16 to 37, inclusive, 39 to 44, inclusive, 77 and 78 may be discussed together by agreement.
I move amendment No. 1:
In page 7, line 22, to delete “Sentencing Information Committee” and substitute “Sentencing Information and Guidelines Committee”.
Cuirim fáilte roimh an Aire tar éis an phíosa reachtaíochta seo a lua. I welcome the Minister to discuss Committee Stage. I indicate my intention to withdraw a series of amendments, including Nos. 1, 5, 12, 16, 18, 22, 25, 28, 39, 42, 52 and 54. I am doing that because the Minister has tabled amendments which cover these issues and I do not wish to duplicate them. I acknowledge the role of my colleagues, Deputy Ó Laoghaire and an Seanadóir Mac Lochlainn, in pressing the issue and advocating for sentencing guidelines to be introduced over recent years, a move which has been welcomed by many stakeholders in the area. In accepting the amendments tabled by the Minister, I believe that we as legislators have delivered on the concept of the sentencing guidelines similar to those of other jurisdictions, which has long been sought by groups representing the victims of crime and sexual violence, such as Dublin Rape Crisis Centre and the Rape Crisis Network.
This is a landmark moment for the justice system. I expect that, ultimately, the majority of criminal cases in this State will see a judge having to take into account sentencing guidelines for that offence in future, making it a significant move. Far too often, we have seen victims feeling severely wronged as perpetrators of crime have been faced with inadequate and inappropriate sentencing. Everybody agrees that the severity of a sentence must match the severity of the crime. There are too many instances where this is not the case. While the vast majority of judges balance the considerations well, it is our view that sentencing guidelines will tackle the issue of unsuitable sentences being handed down, and we believe that the public deserves to know that offenders will receive a sentence that fits the crime and that heinous crimes will be met with stiffer sentences. People deserve to know that there is a basis for calculating that sentence.
I am not sure if the publishing of sentencing information has been addressed within the Minister's amendments. I may well come back to it later and consider some further amendments on Report Stage. I look forward to the Minister's contribution. Sentencing information should be publicly available in the name of transparency and allowing stakeholders to scrutinise it where it is deemed to be inappropriate, whether due to a lack of or failings of existing guidelines. I thank the Minister for working with us on this. It is a good example of how progressive measures can be introduced with cross-party support and a collaborative approach in this House.
I thank the Minister for coming to the Seanad. I welcome the Bill back to the Seanad and express my strong support for the move to bring draft sentencing guidelines within the council's remit, and for the creation of a new sentencing guidelines and information committee.This has long been called for by organisations supporting people in the criminal justice system and I would like to pay tribute to those organisations for their advocacy and for the role that the Sinn Féin Party has played in advocating for them to be included in this Bill. Sentencing consistency is so important to maintain public confidence in our Judiciary and it really is a landmark step that we are debating it here, which is welcome.
I also welcome amendment No. 15, which will broaden out the matters in which education and training will be provided to judges on an ongoing basis by the council. I do not propose to speak at length, only to point out that as this is the first we are seeing of the new sections on sentencing guidelines role for the council, I would like to reserve the right to bring amendments to these new sections on Report Stage, after they will presumably be added to the Bill this evening. I would particularly like to mention the new section 75 to be added by amendment No. 77 on the sentencing guidelines, the criteria for selecting the layperson members of the sentencing committee in the new section 20 and the new provisions added by amendment No. 15 on education and training for judges, which could do with expansion.
I would also like to draw the Minister's attention to the Sentencing Council for England and Wales, which does really excellent work in this area to support the judiciary to ensure sentencing consistency and public awareness of and confidence in sentencing. Under the UK Coroners and Justice Act 2009, the Sentencing Council for England and Wales has an analytical role where it monitors the operation and effect of its sentencing guidelines, publishes information on sentencing and practice for the information of the public and publishes information on the cost of different sentences and their relative effectiveness in preventing reoffending. It is also great at doing public consultations with judges, magistrates, victims and witnesses and it sends all its draft guidelines out for public consultation before they are officially adopted, which is something that is really worth considering, which would really strengthen this Bill and could easily be included within the provisions of section 18.
There are also a couple of issues that I would like to put on the Minister's radar for consideration as these proposals move through the Houses. I understand that sentencing inflation has been a problem in other countries that have introduced sentencing guidelines. I really urge the Minister to guard against this now at the start of the process, before it becomes a problem further down the line. Sinn Féin's amendment No. 40 on sentencing ranges could be helpful in this regard, as could Sinn Féin's amendment No. 43, which would give the council a role in monitoring implementation of the guidelines in practice, as would amendment No. 44 on impact assessment.
I would also like to know if the Minister is considering the repeal of mandatory sentencing for most crimes as recommended by the Law Reform Commission in 2013 now that we are looking to introduce sentencing guidelines. Mandatory sentencing is normally used in jurisdictions that do not have sentencing guidelines, so now that we are moving to introduce them, we should look to remove mandatory sentencing so judges can use their discretion in the courts with the aid of the guidelines and without their hands being tied by mandatory sentencing.
Those are just some of the issues that I am looking to progress on Report Stage. I would appreciate the Minister's thoughts on them and I thank him again for bringing these amendments to the Bill. They are very welcome.
I also welcome the Minister to the House and I welcome the opportunity to debate this important Bill on Committee Stage. I know it has been over 16 months since the Bill was before us on Second Stage and on that occasion I welcomed it as a long overdue Bill and a very welcome Bill. In the context of this first group of amendments, I would also like to welcome the principle which they are based upon and which they are ushering in. I note that Sinn Féin has withdrawn its amendments and Senator Ó Donnghaile has explained why. I support the Government amendments and it is very welcome to see the detail concerning the operation of a sentencing information and guidelines committee. This is long overdue and anyone involved in researching sentencing or in practice in the criminal courts is well aware of the many calls that have been made for the introduction of such guidelines. This is what Tom O'Malley has referred to as a structured discretion system, rather than the current system which is so reliant on an "instinctive synthesis" in sentencing as the Law Reform Commission has said and which, therefore, on occasion has resulted in inconsistencies in sentencing practice and a lack of predictability, which is a problem for those working in the criminal justice system, for those before the criminal justice system and of course for victims as well. I very much welcome the introduction of these amendments and of this principle of sentencing guidelines.
I absolutely agree with Senator Ruane on mandatory sentencing. It has been unfortunate that we have seen presumptive minimum sentences introduced in the past in respect of some serious offences. Now that we are introducing a proper system of sentencing guidelines, there is an even stronger argument for the rejection of mandatory sentencing and for a move towards this structured discretion model that we see incorporated in other jurisdictions and that we will see in this jurisdiction too. I very much welcome these amendments and I am glad we will not have the debate about some of them now that some have been withdrawn and the Government scheme of amendments appears well crafted.
On a related matter, where we do need to see further amendments, which I hope to introduce on Report Stage and I give the Minister notice of this now, is to tighten up or provide more detail on the role of judges in giving guidelines and effectively drawing up model charges to juries. I raise this now because we have seen controversy recently about a lack of judicial control in prejudicial comment made to the jury. I am specifically talking about comments made about a victim's clothing in the context of a sex offence trial. More generally, it would be useful for us to amend section 17 of the Bill, which currently provides for a judicial studies committee. I know that amendment No. 15 is included but I would like to put in an amendment on Report Stage, and I ask the Minister to reflect on same, to enable the Judiciary to have information and materials distributed among it for its use and for the performance of its functions, including in respect of judges conducting criminal trials with a jury to give guidance on: trial management; jury management; directing the jury and; such other matters as may assist in the fair disposition of a case in the opinion of the committee. It is about empowering the committee to provide for more detailed guidelines to judges along the lines of model charges to juries. That might be a helpful additional function for the committee. We might reflect on how that could be done.
I certainly hope to bring forward an amendment on Report Stage to that extent. I know the judges have bench books in the Four Courts, which are centrally important to the conduct of trials, but of course they are private and unregulated documents and now that we are moving in this very welcome fashion towards a more structured system for sentencing, it would also be useful to move towards a more structured system for the giving of charges to juries in criminal trials. We have seen so many appeals also, where critique has been made of particular charges to juries. It is a very difficult task to give accurate, fair and impartial charges to juries in any criminal trial and we all appreciate that, but some sort of structuring of that would be useful and section 17 is probably the appropriate place to see some sort of additional power inserted to do same.
I welcome these amendments again and I look forward to the progress of this Bill being more speedy than it has been to date so that it will come into effect and provide for this important change to our law.
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.
I, too, welcome the Minister to the House. What is the possibility of broadening the scope of the sentencing information and guidelines committee, and will some of the recommendations of the Personal Injuries Commission be taken on board? They could be taken on board by that committee, or another committee could be established under the judicial council to examine the recommendations of the Personal Injuries Commission. I might speak to the Minister before Report Stage about how this might be achieved.
I do not wish to prolong the debate given that we are all in agreement on the merits of the amendments. As I should have stated when I was speaking about the sentencing guidelines, we have an unfortunate history in sentencing practice of overuse of short sentences and of committing far too many people to prison for far too short a time. I hope we will see a change to that through the introduction of the guidelines, although I recognise there has been a good deal of change in recent years thanks to the enactment of the Fines Bill 2010, and far fewer people are now sent to prison for the non-payment of fines. In 2013, the Oireachtas Joint Committee on Justice, Defence and Equality, on which I served with Senator Conway, produced a report on penal reform in which we agreed with the approach of the Irish Penal Reform Trust. We called for less use of prison, for prison to be a sanction of last resort and for a cap on the numbers of people being sent to prison. In that context, I am glad the plans that Senator McDowell had when he was Minister for Justice, Equality and Law Reform for the building of an enormous prison at Thornton Hall have since been shelved, and I commend subsequent Governments on not proceeding with that because we do not need that number of prison places. Senator McDowell has acknowledged the lack of rehabilitative function that prison serves, particularly when people are sent to prison for such short periods, and it would be far better to consider community-based sanctions, as we recommended in our committee report in 2013.
On Senator McDowell's point on the gender differential in sentencing, I have researched the area and extensive research has been carried out elsewhere. Women tend to comprise a far smaller proportion of offenders than men, at no more than 10% in any jurisdiction, and where women are sentenced for similar offences to men, there tends to be somewhat more lenient treatment in most cases, but that is largely due to family circumstance being taken into account and women being much more likely, in Ireland as elsewhere, to be the primary carers of children. Judges are unwilling, therefore, for good reason, to imprison women where so doing would deprive the children of a primary carer. Conversely, women who are convicted of serious offences are treated more severely in many cases and are certainly more extensively stigmatised, especially for participation in violent crimes. It is not always the case, nor is it so simple or straightforward, that women are always treated more leniently. The research shows that there is a more nuanced reality.
Perhaps Senator McDowell did not intend to do so, but it is unfortunate that he used the one example of false complaints of rape because we know that it is a very rare occurrence and that there is an all too prevalent myth in our society that women make false accusations of rape more frequently than the reality. Again, there is extensive research which shows that myth has no basis in fact but, unfortunately, it still informs certain attitudes and stereotypes.That is exactly why on Report Stage I will be bringing forward the amendment to section 17, about which I spoke, to ensure judges would have power and be given guidelines on the charges they should give to a jury with reference to the sexist attitudes or stereotypes that in the past have prevented prosecutions for rape from proceeding effectively or in the same way other prosecutions proceeded. The rape crisis centres, Rape Crisis Network Ireland and others have raised this issue. We have also seen it raised in the context of other recent cases. I will not say any more about it now, but we do need to challenge the sexist assumptions that have pervaded and, unfortunately, influenced the conduct of rape and sex offence trials. The Bill is an excellent vehicle to bring forward the changes we want to see in the criminal justice processes.
It is quite okay.
It is fitting that I am coming in just after Senator Bacik. I note that it is practically one year to the day from the Belfast rape trial, but we will say no more about it. I remember the case referred to by Senator McDowell when he was the then Minister for Justice, Equality and Law Reform. It was regrettable that, through no fault of his own, high up or low down, he found found himself in that situation.
I echo Senator Bacik's comments on the work done on the issue of penal reform by the previous Joint Committee on Justice and Equality. A lot of work was done by that committee and if the recommendations made in a number of reports it carried out and into which it put serious work had been implemented, the penal system would be far better. We produced a report on community courts in which we looked at the example of what happened on Times Square in New York. It became the epicentre of the trend of having community courts which achieved phenomenal results. It turned Times Square from being a no-go zone into probably one of the safest places in the world.
A report on restorative justice, for which I was a rapporteur, looked at the excellent examples that had been piloted in Tallaght in south Dublin and north Tipperary. Senator Ruane will appreciate from where I am coming from on this issue. The pilot projects were driven largely by a retired judge, Mr. Justice Michael Reilly, who was a great person with huge empathy for people who found themselves on the wrong side of the law, probably because of circumstances related to their background, rather than anything malicious.
Our job in this House is to look after, protect and advocate for the most vulnerable in society. Sometimes - not all of the time; rarely, in fact - we have to give counsel to the Judiciary because its members, no more than anybody else, including those who have been in this House for many years, can, through no fault of their own, become detached from reality. Elements of the Judiciary - a minority - can become detached from society as it evolves, changes and alters. Technology, for example, can change a society. Perhaps when a judge started off in the legal profession, he or she saw a set of circumstances, but after 20 years on the Bench he or she would see a new and evolving set. That is where the Judicial Council Bill and a judicial council could play a significant role. Nobody in this society and country is above receiving advice or counsel.
The Bill is probably long overdue. I am delighted that it has not received the same attention or been subject to the same controversy as another judicial Bill currently going through the House. When the Judicial Council Bill 2017 is passed, we will actually assist the most vulnerable. Senator Bacik is correct that there is so much we could do to help and assist people.
Senator McDowell has served in government. I am very fond of and have huge regard for him, but he was in government for nine years, at a time when the State had a lot of resources and when we could have really transformed the prison service, but that did not happen. Fine Gael has been in government for seven or eight years, in probably the most challenging economic times in our history - certainly in lived history - and done quite a lot.
At this point it is appropriate that a huge tribute be paid to the former director general of the Irish Prison Service, Mr. Michael Donnellan, for the work he did and respecting people who were in prison. He did his best to promote education and rehabilitation.
This is a great and necessary Bill that will enable us to adhere to best international practice.
I do not want to deflect the debate too far since we are dealing with particular amendments. Senator Bacik referred to Thornton Hall. It should be built because Mountjoy Prison should be knocked down because it is wholly unsuitable. Those of us who have been to visit it-----
Just like myself. Those of us who have been to visit it will appreciate that it is and always will be wholly unsuitable for the rehabilitation of prisoners. At least Thornton Hall would have had the advantage of having space to play football, have running tracks and so on that could give offenders a decent life. Such facilities would also help to physically rehabilitate them. The site also had the capacity to allow us to move towards having a drug free prison, something Mountjoy Prison simply cannot do. Those who condemned the Thornton Hall project should remember that at the time the Government sold 30 acres of land at Shanganagh Castle. It sold part of it for private development and part of it to Dún Laoghaire-Rathdown County Council for public housing. I note in the papers that although this happened in my time as Minister for Justice, Equality and Law Reform some 14 years ago, no housing has ever been built on the land purchased on that occasion. The entire proceeds of the sale were invested in acquiring 150 acres of land in north county Dublin in an isolated place where there would not have been major communal resistance and where it would have been possible to provide decent psychiatric facilities in conjunction with the Irish Prison Service. It was a visionary project for the improvement of prisons. A previous Minister, former Deputy Alan Shatter, commissioned a report that did not state the project should be abandoned. I believe that some day on that land a proper, decent prison should be built. Whether the numbers have to be larger or smaller is not the issue; it is about having the capacity to rehabilitate prisoners, people who are sentenced having some hope in their lives instilled through the education system and sports and recreational facilities and the physical rebuilding of the lives of drug addicts in a drugs free prison. These are hopes to which I aspire to having and they are hopes that will never be realised as long as Mountjoy Prison is the main prison in the Dublin region.
There is no point in being romantic about Mountjoy Prison, Brendan Behan, Kevin Barry and all the rest. It is not and never will be a suitable institution for the rehabilitation of offenders. It is a depressing and awful place. Anybody who thinks it has a long-term future in a decent prison system is very much mistaken.
I did not mean to or attempt to romanticise Mountjoy. I have been in the prison many times and I agree with Senator McDowell about its unsuitability and the lack of purpose for rehabilitation, notwithstanding the fact that conditions have improved in recent years. When Thornton Hall was proposed there was a very advanced plan, as the Senator knows, to demolish and reconstruct on the site. That would have been entirely different from using the existing structures of Mountjoy Prison. The view I hold is well informed and is on the basis of a lot of evidence and research. I am sure we all agree that we should be moving towards less reliance on prison.
I would not defend the structure of Mountjoy but I would defend the good people who work there. I have been there on a number of occasions, once or twice with Senator Bacik. Slopping out and such things does not exist there anymore. Thornton Hall was a great proposal at the time of the Celtic tiger but it never really took off. Fianna Fáil was in government from 1997 to 2011, when Thornton Hall was purchased but the prison never happened. It will probably not happen now but it is a pity because it would probably have given people the dignity that society wants and which is in accordance with the international obligations to which we have signed up. It is probably nobody's fault that Thornton Hall did not happen and the aspiration was appropriate. It would be unfair, however, not to point out that there are very good people in Mountjoy who are doing their best to rehabilitate people.
I wish to make a small correction to the statement that there is no more slopping out, though I may be corrected on this. I believe there is a tiny percentage of space in Mountjoy where prisoners have to go through the process.
I wish to make a point on the differences in sentencing depending on one's gender. I first visited Mountjoy Prison when I was a trainee solicitor. We were brought up to see the men's and the women's prisons and there is significant difference between the two. The prison officer who was bringing us around pointed out that the women who ended up there tended to have been victims throughout their lives but, for the first time in their lives, they were in a safe environment. They had a bed to sleep in and they were not going to be attacked in their own home. The officer said that when women entered prison, their outside relationships broke down. They are not visited by their partners or husbands, though their mothers come in with their children and their sisters or other people in the community. In the men's prison, however, the wives and girlfriends continue the relationships. There is a significant difference between female offenders and male offenders. It was an eye opener for me and it was very sad to see that women desperately wanted to stay in the women's prison because they received support, education and training there for the first time in their lives. It is a pity the men do not get a similar experience when they are in jail.
I am reluctant to enter into a debate on prison infrastructure and policy but, lest that reluctance be interpreted as indifference, I have lived and worked throughout my career in the town of Portlaoise, which is perhaps best known for its prison complex, the largest urban prison complex in Great Britain and Ireland. I am very familiar with the workings of prison and with prison policy and we might have an opportunity on another occasion to engage on the varying issues, though I do not see a great divergence of opinion with regard to prison policy or operations.
We all agree that prison should be a penalty and a place of last resort for the courts and, by and large, that is the case as far as the administration of justice is concerned. I was amused at the suggestion by a former Minister, Senator McDowell, that Thornton Hall be used for football and sport. That would put into some insignificance the contractual and monetary relationship between the FAI and the chief executive or the current executive vice president, but that is also for another day.
I welcome the debate on the specific amendments. I acknowledge support from all sides of the House and we have worked together in the past few months to facilitate a debate. I thank spokespersons of other parties for their active engagement which has led to the amendments before us being put, and I acknowledge the support of the parties in the Seanad. I also acknowledge the work of spokespersons at party level in the Dáil, and I particularly acknowledge the work of the Attorney General to ensure we are in a position to debate amendments that need to acknowledge the separation of powers between the Legislature and the Judiciary. We have achieved this essential balance.
I note and acknowledge that Senator Ó Donnghaile has withdrawn his amendments in favour of mine. There was a considerable overlap between the group of amendments which we are discussing but there remain a number of points of divergence and I note the Senator did not make reference to his proposal to withdraw amendments Nos. 41, 43 and 44, which relate to matters such as ministerial proposals and the monitoring and further assessment of legislative proposals. In my view, the amendments are more appropriate to a somewhat different type of structure than is possible within the framework of this particular Bill.
The key point is that there is general consistency in the overall objective to ensure there is public confidence in the practice of sentencing in general, though I am not sure how far we can go in terms of the particular in this regard. As policy makers, we have to ensure confidence in the sentencing regime is evident. We are debating a larger number of amendments, which is somewhat inevitable having regard to the changes required in the Bill as we move towards a provision for sentencing guidelines and the information committee.On the amendments in my name, the first set of amendments, which are Nos. 2, 6, 14, 17, 20, 23 and 26, all appear to be very straightforward. They concern a change in name for what is currently referred to as a sentencing information committee. The effect of the amendments is that the committee will be renamed the sentencing guidelines and information committee. This reflects its new remit and the new functions bestowed upon it.
Amendments Nos. 4, 19, 21, 24, 27, 29, 30 to 32, inclusive, and 77 are connected with the new functions the committee will now have. A key amendment among those is amendment No. 21, following the model in section 30, which relates to the judicial conduct committee. Provision is now being made for the committee to prepare draft sentencing guidelines and to submit those guidelines for review by the board of the judicial council. Any amendments to guidelines adopted by the council will be dealt with in the same manner.
Another key amendment in this group is amendment No. 77. It sets out the broad parameters for the sentencing guidelines which are to be adopted by the council. This amendment also specifies various factors which must be taken into account by both the committee and the board in preparing or reviewing drafts of such guidelines. Amendments Nos. 4 and 32 are linked to No. 77 insofar as they define the terms "sentence" and "sentencing guidelines." Amendment No. 27 is a consultation provision, which will allow the committee to draw upon external expertise in the preparation of draft sentencing guidelines. Amendment No. 31 mandates the committee to prepare material for inclusion in the annual report of the council in relation to its work. Apart from the first report of the council, which may cover a period longer than a calendar year, the relevant period will usually relate to activities during the preceding year, which is normal, as Senators will be aware.
Amendments Nos. 8, 10 and 11 relate to the role of the committee on the board of the council in relation to the draft sentencing guidelines. To ensure consistency with other provisions in the Bill, these amendments mirror the arrangements envisaged for the judicial conduct committee insofar as the proposed guidelines for judicial conduct and ethics are concerned. In essence, the board will be tasked with reviewing the guidelines and introducing modifications if deemed appropriate. The council will be tasked with the adoption and publication of the guidelines. Adoption must take place not later than 12 months after the draft guidelines have first been submitted by the sentencing guidelines and information committee.
Amendments Nos. 3 and 33 to 37, inclusive, are all concerned with issues around membership of the committee and its procedures. Amendment No. 33 provides that the committee is to consist of 13 members, being eight judges and five lay members, appointed by the Government following a recommendation from the Public Appointments Service, PAS, on foot of a selection process. The role of PAS is dealt with in amendment No. 34. The eligibility criteria for being appointed as a lay member are set out in section 31 of the Bill, which deals with lay members of the conduct committee. In this case, however, a person is not excluded from appointment by virtue of being a practising barrister, solicitor or civil servant. These restrictions, which are appropriate in the case of the judicial conduct committee, are not appropriate in this instance. Amendment No. 35 specifies that the standard membership term for the committee shall be four years, which shall be renewable once. The filling of casual vacancies is dealt with by amendment No. 36. Matters such as the procedure in relation to meetings, the first of which is to be held not later than three months after the date of the first meeting of the council and the quorum, set at five, are addressed under amendment No. 37.
The final amendment with which I need to deal is amendment No. 78. Senators will agree that it is one of the most critical. This is the amendment which specifies that a court shall, in imposing a sentencing, have regard to sentencing guidelines relevant to the proceedings before it unless the court is satisfied that to do so would be contrary to the interests of justice. This amendment has been carefully crafted following extensive engagement with the Office of the Attorney General. I confirm to this House that the clear advice received was that non-binding sentencing guidelines of the kind proposed are constitutionally permissible. However, the imposition of guidelines of a binding or statutory nature on courts in criminal matters would violate the separation of powers, the requirements of Articles 37 and 38 of the Constitution, and would interfere with the scope of judicial discretion, which would also be contrary to the Constitution. I was anxious to explore the scope which existed for a more robust approach to sentencing guidelines. I take the view that confidence in the criminal justice system would be greatly enhanced if the public feels there is genuine consistency in the imposition of sentences in criminal cases.
I have listened to what Senators have said during this debate. I am inclined to strongly agree with Senator Bacik on the point she made about mandatory sentences, and I suspect that it is a view that a majority in this House holds. In recent years it must be acknowledged that the guidelines, as developed by the Judiciary, are increasingly used as a technique to structure judicial sentencing discretion. However, it is often not very clear if the public is aware of these developments. The requirement to produce formal guidelines builds upon evolving good practice and will, I hope, allow the public a greater insight into and appreciation for the workings of the criminal justice system. It will provide people with the assurance that the system is working in an appropriate, efficient and effective way.
I ask Senators to agree to the amendments. Reference has been made to a perceived delay in bringing this legislation back to the House. I acknowledge that time has elapsed, but that time has been put to good use. I return to the introduction made by Senator Ó Donnghaile, and acknowledge the work done in that regard. I ask Senators to accept that I have pushed the boundaries of sentencing guidelines as far as I believe is feasible within the parameters of the Constitution, and I acknowledge the input and work of Senators across the board in that regard. I acknowledge the withdrawal of Senator Ó Donnghaile's amendments. I should not make comparisons with any other legislation passing through this House in parallel, but I very much welcome the fact that already, in the course of the early stages of the debate on these amendments, that at least three Senators are preparing for Report Stage by reserving the rights to put down amendments and talking about what might happen at later stages. I very much welcome that, and hope that the short time between now and Report Stage will be used by all of us to discover the other issues that might be addressed. I acknowledge what Senator Ruane has said, and would be happy to look at the issue she raised. I am more than willing to consider any proposals that are constitutionally sound and are workable, and which do not have any unintended consequences or impinge upon the fundamental independence of the Judiciary in any way in the carrying out of its duties.I acknowledge a fundamental thread that was referred to by Senator McDowell when he said that each and every case that goes before the courts is judged and should always be judged on its own particular merits. Cases are in many respects unique.
I welcome this debate but hope that we could proceed with the amendments as far as the sentencing guidelines are concerned, having regard to what I have acknowledged to be a consensus on this issue. I thank Senators for their input.
This amendment follows the publication language used in section 39 on the specification by the conduct committee of procedures relating to matters such as the making and investigation of complaints. It goes without saying that the adoption in this context implies publication. However, having regard to the fact that the Bill does not explicitly mandate publication, it seems desirable in the interests of transparency to make a clear statement on the matter.
A similar provision is being made in amendment No. 8 to section 7, as far as the guidelines are concerned.
I move amendment No. 12:
In page 14, between lines 24 and 25, to insert the following:“(d) may of its own volition submit a proposal, report or recommendation to the Council in relation to the level of general damages for various types of personal injury and shall do so upon request form the Council in relation to the level of general damages for various types of personal injury,”.
I withdraw my amendment and will resubmit it on Report Stage.
I move amendment No. 40:
In page 20, between lines 22 and 23, to insert the following:
19. (1) When exercising its functions under section 19#, the Sentencing Information and Guidelines Committee shall have regard to the desirability of sentencing guidelines
which relate to a particular offence being structured in the way described in subsections (2) to (5).
(2) The guidelines should, if reasonably practicable given the nature of the offence, describe by reference to one or more of the following factors, different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed:(a) the offender’s culpability in committing the offence;
(b) the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence;
(c) such other factors as the Committee consider to be relevant to the seriousness of the offence in question.(3) The guidelines should—(a) specify the range of sentences (“the offence range”) which, in the opinion of the Committee, it may be appropriate for a court to impose on an offender convicted of that offence, and
(b) if the guidelines describe different categories of case in accordance with subsection (2), specify for each category the range of sentences (“the category range”) within the offence range which, in the opinion of the Committee, it may be appropriate for a court to impose on an offender in a case which falls within the category.(4) The guidelines should also—(a) specify the starting point in the offence range, or
(b) if the guidelines describe different categories of case in accordance with subsection (2), specify the sentencing starting point in the offence range for each of those categories.(5) The guidelines should—(a) to the extent taken into account by categories of case described in accordance with subsection (2), list any aggravating or mitigating factors which, by virtue of enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Committee considers are relevant to such a consideration,
(b) list any other mitigating factors which the Committee considers are relevant in mitigation of sentence for the offence, and
(c) include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Committee considers to be of particular significance in relation to the offence or the offender.(6) The provision made in accordance with subsections (2) to (5) may differ for different circumstances or cases
Ba mhaith liom cúpla focal a rá air seo.
I move amendment No. 41:
In page 20, between lines 22 and 23, to insert the following:
“Proposals by the Minister or Court of Appeal19. (1) The Minister may propose to the Sentencing Information and Guidelines Committee that sentencing guidelines, prepared under section 19 be prepared or revised by the Committee under section 7—(a) in relation to a particular offence, particular category of offence or particular category of offenders, or(2) The Court of Appeal may propose to the Committee that sentencing guidelines be prepared or revised by the Committee under section 7—
(b) in relation to a particular matter affecting sentencing.(a) in relation to the relevant offence, or(3) A proposal under subsection (2) may be included in the appeal court’s judgement in the appeal.
(b) in relation to a category of offences within which the relevant offence falls.
(4) If the Committee receives a proposal under subsection (1) or (2) to prepare or revise any guidelines, it must consider whether to do so.
(5) This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgement of the court.”.
I move amendment No. 43:
In page 20, between lines 22 and 23, to insert the following:“Monitoring of Sentencing Guidelines
19.(1) The Sentencing Information and Guidelines Committee must—(a) monitor the operation and effect of its sentencing guidelines, under section 19,(2) Committee must, in particular, discharge its duty under subsection (1)(a)with a view to drawing conclusions about—
(b) consider what conclusions can be drawn from the information obtained by virtue of paragraph (a).(a) the frequency with which, and extent to which, courts depart from sentencing guidelines,(3) When reporting on the exercise of its functions under this section in its annual report for a financial year, the Committee must include—
(b) the factors which influence the sentences imposed by courts,
(c) the effect of the guidelines on the promotion of consistency in sentencing, and
(d) the effect of the guidelines on the promotion of public confidence in the criminal justice system.(a) a summary of the information obtained under subsection (1)(a), and
(b) a report of any conclusions drawn by the Committee under subsection (1)(b).”.
I move amendment No. 44:
In page 20, between lines 22 and 23, to insert the following:“Duty to assess impact of policy and legislative proposals
19.(1) This section applies where the Minister refers to the Sentencing Information and Guidelines Committee any Government policy proposal, or Government proposal for legislation, which the Minister considers may have a significant effect on one or more of the following:(a) the resources required for the provision of prison places;(2) The Committee must assess the likely effect of the proposal on the matters mentioned in paragraphs (a)to (c)of subsection (1).
(b) the resources required for probation provision;
(c) the resources required for the provision of youth justice services.
(3) The Committee must prepare a report of the assessment and send the report to the Minister.”.
This reflects what has been a tradition - that of recusal - whereby judges may wish from time to time to recuse themselves from hearing a particular case independent of any application or after an application that recusal is appropriate in the circumstances. The test of recusal is one of objective bias. Essentially, if a reasonable and fair-minded person in possession of all the relevant facts reasonably apprehends that the judge will not be fair and impartial, then in general a judge will recuse himself from any case to which he has a personal connection. For example, a relevant case may involve relatives or friends or a former client or some other circumstances that might create a risk of impartiality being called into question.
The Bill as published already provides that the conduct committee shall prepare and submit to the board of the council draft guidelines concerning ethics on judicial conduct. The practice in other jurisdictions where guidelines or equivalent measures have been adopted is that provisions on impartiality, which include conflict of interest considerations or separate provisions relating to the latter, are included within that framework. I have every confidence that similar provisions would be included in the guidelines that the conduct committee is being mandated to draw up. Given the importance of this issue for the administration of justice, however, it may be useful to include a provision in the Bill that explicitly highlights the need for the guidelines to include guidance as to matters to be considered in the context of recusal. This is one way in which conflicts of interest may be managed. The merit of the amendment is that it will ensure rules relating to recusal are included in a single publicly accessible document. I am still considering whether it may be desirable to set up a register of financial interests for judges and, if so, what the overall structure of that register might be. This is a matter that we may return to when we come to Report Stage.
There is precedent for this approach. I am keen to acknowledge the situation in New Zealand where legislation has been introduced recently that places an obligation on the judiciary there to develop and publish guidelines to assist judges in deciding whether they should recuse themselves from proceedings. On foot of that legislation, guidelines have been published for the supreme court, the court of appeal and the high court there. New Zealand also has well-developed guidelines for judicial conduct. I believe the amendment is desirable and I am seeking the support of Seanadóirí in that regard.
The amendment proposes the deletion of section 43(7). The reason is that the subsection is in many ways superfluous having regard to the content of section 43(6) as well as sections 47 and 51. These provisions deal with the matter of notifications to a judge where a complaint has been referred to a panel of inquiry for investigation.
The amendments I have tabled reflect those tabled by Senator Clifford-Lee and Senator Ó Donnghaile. I appeal to Senators in the spirit of compromise that has been evident over the past hour or so to accept my proposals having regard to the fact that they are designed to achieve what is a common objective, that is to say, increased transparency, subject to the need to address what might be regarded as exceptional circumstances where publicity might not be warranted.
The key amendment is amendment No. 55. In its current form section 55 provides that a hearing of a complaint before a panel of inquiry shall be conducted otherwise than in public unless the conduct committee directs that to safeguard the administration of justice it should be conducted in public. A similar arrangement applies later in section 66 in respect of a hearing conducted by the judicial conduct committee in respect of a complaint that has been the subject of an investigation by a panel of inquiry and in respect of which a report has been submitted to the conduct committee.
Amendment No. 55 proposes to amend the relevant section to provide that the default arrangement would be that a hearing would be held in public unless the conduct committee directs that to safeguard the administration of justice such a hearing should be conducted in private. Amendments Nos. 51 and 53 are consequential upon this change. They concern the notification requirements to the judge and the complainant. Essentially, where a hearing is to be conducted in public, whether in whole or in part, both the judge and the complainant are given an opportunity to request that some or all of that hearing may be conducted otherwise than in public. This is an exceptional provision. Section 51 specifies that the conduct committee shall not accede to such a request in the absence of reasonable or sufficient cause. Amendment No. 66 mirrors amendment No. 55 in the event that there are any court proceedings arising out of the making of a complaint.
Amendment No. 60 relates to section 66 and is a new provision specifying that a determination is to be published where it arises out of a hearing that is being held in public. By contrast, amendment No. 61 deals with a situation where a hearing has been held in whole or in part otherwise than in public.In this case, the conduct committee has discretion as to whether a determination should be published. The remaining number of amendments largely relate to the information which can be included in the annual report of the judicial conduct committee. The changes being proposed flow from amendments which I have already outlined. In amendment No. 59, which concerns section 66, the deletion proposed is consequent on the fact that by virtue of amendment No. 75, the annual report must contain "the name of a judge to whom section 66(11)applies". There is no longer any discretion in this matter, but by way of further background, the scenario contemplated by section 66(11) is one where a judge is required to make a report as to his or her compliance with a requirement contained in a determination and either does not make such a report or does not satisfy the conduct committee that he or she is indeed in compliance. Amendment No. 75 also requires that the name of a judge to whom section 58 applies be published in the annual report. The section in question deals with the case where there is failure or refusal on the part of the judge concerned to co-operate with a panel of inquiry. The amendment also deals with reprimands which are issued under section 66, following the conclusion of the complaint process. The default position is that both the name of the judge and the reprimand issued should be published. However, there is something of a saver, where it is considered that in order to safeguard the administration of justice, such publications should not occur at all. Amendment No. 70, however, will ensure that there is information about the number of cases where a reprimand was issued but the information about such a reprimand is not being made public. Amendment No. 67 expands the provision on the annual report of the conduct committee, which is contained in section 69. It underlines the fact that where evidence is given otherwise than in public, this does not prevent the publication in the annual report of the findings of a panel of inquiry or of the information required to be published by virtue of section 73 in relation to reprimands. Amendments Nos. 73 and 74 are technical amendments which take account of the restructuring of section 73, consequent on amendment No. 75.
I merely wish to say that the objective of these amendments is to achieve balance. Having regard to discussions that took place since the publication of the Bill, I felt that perhaps we could achieve a greater level of balance as far as information is concerned and that is why I proposed these amendments, which are not dissimilar to amendments tabled by other Senators.
I do not want to delay proceedings and I do not want to pry into matters which I perhaps should not pry into but can the Minister indicate if these amendments are broadly agreeable to the Judiciary or are they the subject of controversy?
On amendment No. 56 in my name, as the Minister has acknowledged, it is similar to amendments he has subsequently submitted which we will be supporting but there is obviously the issue of concern being expressed about the existent provision as secrecy was involved. Obviously in these proceedings and in such hearings they should, where appropriate, happen in public in order to instil that confidence in the proceedings. Hearings behind closed doors are no good unless it is in those exceptional circumstances and we submitted amendment No. 56 on that basis. I am pleased to see that the Minister is doing likewise in his amendment and I am inclined to support the Minister's amendment and withdraw my own.
I confirm that the amendment mirrors the provision which applies to hearings by a panel of inquiry, whereby both a judge and a complainant are notified in writing of the date, time and place of the hearing in sufficient time to allow them to prepare for the hearing. Under section 66, the conduct committee may also conduct a hearing before making a determination on a complaint on which a report has been submitted by a panel of inquiry. The purpose of such a hearing would be to assist the committee in making a decision to ensure the observation of fair procedures. The amendment rectifies something of a lacuna in the text as it currently reads.
This deals with the powers under section 56 relating to witnesses. Evidence in the context of an investigation by a panel of inquiry covers matters such as enforcing the attendance of witnesses and examining witnesses on oath. The proposed amendment ensures coherence between the arrangements in place in respect of a panel of inquiry's investigations and the arrangements in place in respect of hearings by the conduct committee. It remedies what was an omission in the Bill as published.
This is the referral by the conduct committee to the Minister of a matter relating to the conduct or capacity of a judge for the purposes of Article 35.4 of the Constitution. The provision in the Bill relates to a particularly sensitive issue, namely, dealing with a referral by the conduct committee to the Minister for Justice and Equality of a matter which warrants the proposing of a motion under Article 35 of the Constitution calling for the removal from office of a judge, either for stated misbehaviour or for incapacity. The amendment itself, however, is straightforward. It involves the deletion of the provision for notification of the complainant that an investigation has been adjourned. The rationale for the amendment is that such a notification carries with it the risk that it would alert the complainant to the fact that a referral to the Minister might be in play. This would not be desirable, in particular because if a referral were not proceeded with, speculation as to what occasioned the adjournment could be damaging to the reputation of the individual judge concerned.If, under subsection (13), the judicial conduct committee is not satisfied that a referral should be made, the investigation by a panel of inquiry will proceed as normal and the complainant will be engaged in the process as if the question of a referral had never arisen. On the other hand, if a referral actually occurs, provision is made in subsection (14) to ensure the complainant will be notified, but this will only happen once the relevant Article 34 motion has been proposed.
A panel of inquiry will have a general power to adjourn an investigation of a complaint under section 62 of the Bill. In this instance, there is no notification requirement in respect of either the judge or the complainant. It is only where the investigation is subsequently discontinued that the notification provision will kick in. The proposed amendment thus introduces consistency to how adjournments should be handled insofar as the notification requirements are concerned.
Senators will be aware that when the Bill was first published, the provision which allowed for imprisonment where there had been unauthorised disclosure of evidence given in a private hearing was the subject of some criticism in the Houses and across society. Having regard to the earlier debate we had on the role and function of prison, I have taken on board the fact that a penalty of this nature may be regarded as disproportionate in the circumstances. Accordingly, I am proposing that the penalty available where such disclosure has taken place should be a monetary one. The fine proposed is that contained in the Bill, as it stands, namely, a fine not exceeding €5,000. I hope Senators will agree that this represents an adequate and appropriate sanction to address those cases where the confidentiality requirements of section 69 have been breached.
This amendment provides for the payment of reasonable expenses of a complainant or witness who may have to pay travel or accommodation costs in order to appear before a panel of inquiry or a hearing of the Judicial Conduct Committee. Such a provision is made in many of the Acts which govern appearances before investigative or other bodies. For example, section 49 of the Mental Health Act 2001, section 12 of the Criminal Law Insanity Act 2006 and section 83 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 contain similar provisions. In the case of bodies for which there is no explicit statutory provision such as the Medical Council, the Nursing and Midwifery Board and the Teaching Council, some make witness payments on the basis of custom and practice. In this instance, it is not unreasonable to have an explicit provision in the interests of transparency.
Victor Boyhan, Lorraine Clifford Lee, Rose Conway Walsh, Gerard Craughwell, Paul Daly, Aidan Davitt, Maire Devine, Paul Gavan, Alice Mary Higgins, Gerry Horkan, Pádraig MacLochlainn, Ian Marshall, Michael McDowell, Rónán Mullen, Jennifer Murnane O'Connor, Niall Ó Donnghaile, Fintan Warfield.
Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paul Coghlan, Martin Conway, Frank Feighan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, Marie Louise O'Donnell, James Reilly.