I am pleased to present to the House today the Criminal Justice (Temporary Release of Prisoners) Bill 2001. The purpose of the Bill is to provide a clearer legislative basis for the power of the Minister for Justice, Equality and Law Reform to grant temporary release to a prisoner by amending the Criminal Justice Act 1960 and setting out the purposes for which temporary release may be granted, the circumstances in which it is to occur and the criteria which are to apply to the process.
Section 2 of the Criminal Justice Act 1960 is the current legal basis for the power to grant temporary release and provides that the Minister may make rules for the temporary release of prisoners, subject to conditions which may be imposed in each particular case. Rules made under this section include provisions for the imposition of conditions applicable to temporary release and for procedural matters.
Section 2 is a general provision and does not contain any guidance for the exercise of this power. The findings of the High Court in the Corish case, delivered early in 2000, pointed to the desirability to set out more clearly in legislation the criteria that should apply to the operation of the system of temporary release. The net point of the judgment in the Corish case was that there was no power to refuse to consider temporary release for categories of offenders because the 1960 Act did not specify that such a power existed. This arose from a position in which successive Ministers for Justice had specified certain categories of prisoners who are not considered for temporary release, save in exceptional circumstances. These categories included sex offenders, drug offenders and others where a risk to the community was significant or where public revulsion at the nature of such offences was particularly strong.
Following the judgment in the Corish case, the operation of these broad exclusions for categories was discontinued and each case is now considered and decided on its individual circumstances, having regard to the safety of the public which is of the utmost importance. This new practice will continue and, in the context of circumstances in which the provision of extra prison places in recent years has largely addressed the problem of overcrowding and allows for the operation of a controlled and structured temporary release regime, I emphasise emphatically that it is not the intention in this Bill to reinstate powers to exclude categories of offenders from temporary release. Notwithstanding this, following the Corish case, action must still be taken to ensure that the criteria governing the operation of the temporary release system be set out more clearly.
The Corish decision was a convincing argument that the 1960 provision was short on specifics and certainly not up to the standards of transparency that we now rightly expect to apply to the exercise of ministerial powers. It was for this reason that the previous Minister for Justice, Equality and Law Reform sought and obtained Government approval for this Bill. During the preparation of the Bill, the Supreme Court, in a non-binding comment in the case of the DPP v. Finn on 24 November 2000, suggested it was desirable that the system of temporary release be placed on a clearer and more transparent basis. We are acting in accordance with the judgment of the High Court and advice of the Supreme Court in introducing this legislation.
Before discussing the details of the Bill, it is important to consider what is the purpose of a system of temporary release and how it operates and to realise that temporary release is our system of parole, which is an essential feature of prison systems worldwide. Senators will be aware that the reason systems of parole or temporary release exist is that it is generally recognised that in a modern prison system, a more proactive role is required than that of just locking up an offender until the entire sentence is served and then releasing that person into society unchanged or possibly even changed for the worse. The prison system must, in so far as possible, seek to ensure, both for the longer-term safety of the community and in the interests of rehabilitating the individual prisoner, that prisoners, when released, will not re-offend.
The temporary release system can play an important role on a number of fronts. On the one hand, it can assist in the prevention of the commission of crime and safeguard the community while, on the other, seek, on a humanitarian basis, to help offenders to take the important step away from crime and into more positive and law abiding lives. Temporary release may be granted for various reasons to prisoners serving sentences of imprisonment. Short-term releases may be granted for different periods, ranging from a few hours to one or two days, and for a variety of reasons, including compassionate reasons such as the illness or death of a near relative. Efforts are also made, where possible, to plan structured temporary releases for re-socialisation purposes and to plan for the reintegration of offenders into the community.
Pre-release preparation could include the following: transfer to a less secure institution; a programme of short-term releases which might progress from supervised to unsupervised outings. The purpose of such programmes would be to reduce the effects of institutionalisation by aiding, for example, familiarisation with the outside world or maintaining relationships with family or relatives; temporary release to attend work experience or training. For example, prisoners in the training unit who are deemed suitable may attend the workshops run by Prisoners Aid through Community Effort, a voluntary organisation for the care and education of offenders founded in 1969, which runs a training workshop at Santry where various skills can be acquired that increase the possibility of finding work. The Santry workshop is attended both by serving prisoners on day release programmes and some who have recently finished their sentences. Prisoners may also be granted weekly renewable temporary release after careful screening to take up employment or to continue education or vocational training courses; and, pre-release preparation often includes temporary release to attend residential treatment for alcohol or drug addiction.
Decisions on pre-release programmes are made by the Minister or senior officials of the Irish Prison Service on his behalf. Review meetings are held regularly in each prison institution to facilitate the exchange of information and aid decision making in the management of offenders' sentences. Each meeting is chaired by the governor or deputy or assistant governor of the institution in question and is attended by senior prison management, probation and welfare service staff, chaplains, teachers, other prison staff and an official from the Irish Prison Service headquarters. Where an offender is engaging with other services in the prison, such as the psychology or psychiatry service or other medical services, the professional dealing with the specific offender will also be invited to attend when required.
Issues concerning risk to the community and preparation for re-integration are much more complex regarding offenders serving long sentences. For this reason, the interim parole board, which replaced the sentence review group, was established in April 2001 by the previous Minister for Justice, Equality and Law Reform. The principal function of the board is to advise the Minister on the administration of longer-term prison sentences, including the type of programmes which should be in place leading to release. The board reviews cases of prisoners sentenced to determinate sentences of eight years or more, but less than 14 years in circumstances where the prisoner has served half of the sentence. In the cases of prisoners sentenced to 14 years or more, including life sentences, the board will review after seven years of the sentence have been served. To be eligible for review a prisoner must have at least 12 months left to serve of his or her sentence at the time of the review.
The interim parole board formally began its work in December 2001, having first received guidance from the Irish Prison Service, probation and welfare service and psychiatric service sources. The board also received instruction from training personnel attached to the English parole board on its methods and sat in on hearings of that board.
It is important to be aware that in making its recommendations to the Minister, the board already has regard to the type of criteria provided for in this Bill. Enactment of the Bill will provide a statutory base for such criteria to which the Minister will have to have regard in dealing with recommendations from the board. The interim parole board has been set up on an administrative basis with a view to gaining experience of the issues of temporary release. The question of the establishment of the interim parole board on a statutory basis will be kept under review, taking into account the experience gained by the operation of the board.
I have already referred to the reasons for and importance of having a system of temporary release in operation. There are, however, conflicting issues which will always arise in such a situation. On the one hand, temporary release allows for processes of rehabilitation and reintegration of offenders into society while, on the other, and most importantly, concerns in relation to the safety of all citizens are addressed. It would be unrealistic to state there is never an element of risk involved in any system of parole or temporary release and, while the easy option might be to rule out any possibility of temporary release, such an approach would have serious consequences in establishing an inhumane penal regime. This would ultimately create greater risks for the public from prisoners whose only future prospects may be the continuation of a life of crime. None of us would favour such an approach and the Legislature, through the Criminal Justice Act 1960, has accepted that there is a need for a system of temporary release.
Any Minister for Justice, Equality and Law Reform must perform a difficult balancing act in operating a system of temporary release, weighing possible risks against possible benefits with the safety of the public always being of paramount concern. The prison modernisation programme in recent years is an important development in achieving this balance. The programme has largely resulted in the welcome closing of the "revolving door" system. With the pressure to relieve overcrowding in the prison system now gone, this allows for the operation of a controlled and structured system of temporary release. This Bill makes more transparent the criteria which should apply to the exercise of the power to grant temporary release and the considerations which must be taken into account in deciding on individual applications for temporary release.
I now turn to the main provisions of the Bill for the information of the House. The Bill is a short one which comprises only two sections, the second of which is a standard provision which contains the Short Title and commencement provision.
The main provisions of the Bill are contained in section 1 which amends the Criminal Justice Act 1960 by inserting a new section 2 into that Act. The new section 2(1) provides that the Minister for Justice, Equality and Law Reform can direct the temporary release of a person serving a sentence of imprisonment. Subsection (11) makes it clear that imprisonment includes detention in St. Patrick's Institution and in detention centres provided for in the Prisons Act 1970.
Subsection (1)(a) sets out the purposes for which temporary release may be granted by the Minister. These are to assess the person's ability to re-integrate into society upon such release; to prepare a person for release upon expiration of his or her sentence or upon his or her being discharged from prison; and, to enable a person to assist the Garda Síochána in the prevention, detection or investigation of offences or the apprehension of a person guilty of, or suspected of having committed, an offence. Paragraph (b) further provides that a person may be temporarily released where circumstances exist to justify the person's release on health grounds or on other humanitarian grounds. Paragraph (c) provides that a person may be temporarily released where, in the opinion of the Minister, the release is necessary or expedient to ensure good government of the prison concerned or to maintain good order and the humane and just management of the prison concerned. Finally, paragraph (d) provides that a person may be temporarily released if the Minister is of the opinion that the person has been rehabilitated and would be capable of reintegrating into society.
Subsection (2) sets out the considerations which the Minister must take into account in deciding whether to grant temporary release. This subsection is intended to give a statutory basis to the considerations that have hitherto been taken into account in practice in reaching decisions on whether to grant temporary release and reflect internationally accepted practice. The considerations are: the nature and gravity of the offence to which the sentence being served by the person relates; the sentence concerned and any recommendations made by the court in relation to the sentence imposed; the period of the sentence served by the person; and the potential threat to the safety and security of the public should the person be released.
This provision now also provides, following an amendment to the Bill in Dáil Éireann, that regard will be taken of the views of the victim of the offence to which the sentence of imprisonment being served by the person relates; the person's previous criminal record; the risk of the person failing to return to prison at the expiration of the period of temporary release; the conduct of the person while in custody or while previously on temporary release; any report or recommendation made by the governor, the Garda Síochána, a probation and welfare officer or any other person whom the Minister considers may be of assistance in coming to a decision as to whether to grant temporary release; the risk that the person might commit an offence during any period of temporary release; the risk of the person failing to comply with any of the conditions of temporary release and the likelihood that a period of temporary release might accelerate the person's re-integration into society or improve his or her prospects of obtaining employment.
Subsection (3) sets out the circumstances in which the Minister shall not give a direction for the temporary release of a person. These circumstances are where it would not be appropriate to give such a direction for persons connected with any one or more of the considerations listed in subsection (2). This simply means that the Minister must not grant temporary release where he or she is of the opinion that he or she should not do so on the basis of any or all of the criteria in subsection (2). If, when considering any of the criteria, the Minister is of the view that the person should not be granted temporary release, he or she cannot grant such release even if another of the criteria might suggest that temporary release would be beneficial. If, for example, the potential threat to the safety or security of the public is so great that he or she feels the prisoner should not be released, the fact that the release might improve the person's prospects of employment need not be considered.
Paragraph (b) provides that temporary release may not be granted if it is prohibited by existing or future statutory prohibitions on temporary release. Such statutory prohibitions exist, with a saver for grave reasons of a humanitarian nature, in section 5 of the Criminal Justice Act 1990 regarding persons convicted of treason or of certain murders and attempted murders, for example, the murder of a garda. Similarly, section 27 of the Misuse of Drugs Act 1977, as amended by section 5 of the Criminal Justice Act 1999, provides that temporary release cannot be granted to a person where the mandatory minimum penalty of ten years imprisonment for drug trafficking has been imposed under that section, except for grave reasons of a humanitarian nature. Paragraph (c) provides that temporary release may not be granted to prisoners serving sentence for one or more offences who are on remand for another offence or offences.
Subsections (4) and (5) provide for the governor to be informed and to give effect to the Minister's decision. Subsection (5) now also provides, following an amendment to the Bill in the Dáil, that the governor shall make and keep a record in writing of that direction. Subsection (6) provides clarification that the granting of a period of temporary release does not create an entitlement to further periods of temporary release. Each and every release is a separate matter, having regard on each occasion to the criteria set down in this Bill. Subsection (7) provides that the Minister may make rules for the purpose of enabling this section to have full effect and that such rules may contain such incidental, supplementary and consequential provisions as the Minister considers necessary or expedient.
Subsection (7) now also provides, following an amendment to the Bill in the Dáil, that such rules may specify conditions to which all persons released shall be subject or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject. Clearly, conditions can be attached to temporary release. Subsection (8) provides that any rules made must be laid before both Houses of the Oireachtas. Subsection (9) provides that nothing in the Bill shall affect the operation of the Criminal Justice (Release of Prisoners) Act 1998. This subsection is precautionary to ensure that the arrangements applying to temporary release of qualifying prisoners under the terms of the Criminal Justice (Release of Prisoners) Act 1998 cannot be adversely affected by anything in this Bill.
The Bill is in keeping with a view expressed by the Supreme Court in the case of the Director of Public Prosecutions v. Finn that a clearer and more transparent basis for the system of temporary release is desirable. In the course of its judgment, the Supreme Court said it is extremely desirable that remission and sentence review should be placed on a clear and transparent basis but that it is ultimately a matter for the Oireachtas to decide whether to retain the present system, put it on a clearer and more transparent basis, devolve it to a parole board or confer it on the courts. This Bill, together with the interim parole board which advises the Minister on the sentence management of long-term prisoners, will provide the clear and transparent basis, which the Supreme Court has said is desirable, as well as the necessary safeguards required for the operation of the system of temporary release.
I commend the Bill to the House.