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Dáil Éireann debate -
Thursday, 10 Mar 1983

Vol. 340 No. 12

Criminal Case Sentences: Motion.

Dún Laoghaire): I move:

That Dáil Éireann asks the Minister for Justice to consider whether there is a need for legislation to ensure a reasonable degree of uniformity in the sentences imposed in serious criminal cases.

With your permission, a Cheann Comhairle, I might say that, by agreement, Deputy Woods will be the first speaker and if I may, I shall come in later to say a few words.

The Chair understands that agreement has been reached between the Whips as to how this debate will be conducted. The Chair proposes to call from side to side of the House.

On a point of order, as it appears agreement has been reached between the Chief Whips of the Government and Fianna Fáil parties I might say that Deputy Mac Giolla, Deputy Gregory-Independent and I have not been informed of what is the arrangement. Perhaps somebody could explain it to us.

(Dún Laoghaire): With the co-operation of Deputy B. Ahern this motion has been put down in our joint names in fairness to the Opposition because they had asked for this opportunity for a discussion on this matter. We felt this was the best way of doing it. Rather than impose time limits with which this House is bedevilled we felt, as an experiment, if people wanted five minutes to have their say they could do so. Provided everybody acts reasonably, everybody who wants to speak can get in and speak. I think we can all say what we want to say in two or three minutes, if necessary. Therefore I have no doubt but that the Members referred to can be facilitated quite easily.

I might make the point that we would appreciate it if we were kept informed when these arrangements are being made.

Deputy De Rossa will understand that the Chair has no active role to play in that matter.

(Dún Laoghaire): It is fair to say that The Workers' Party were formally advised of it.

We were advised when this decision had been taken.

The Chair understands that this debate will conclude at 5 o'clock and the more we eat into it the less time there will be.

I should like to formally second the motion and reserve my right to speak later. The agreement is that Deputy Woods will speak first. I should say also that it is the intention of the Whips to try and get away from these arguments about time. The spirit of the motion is that anyone who wishes to speak can speak and that nobody will speak at too great a length. In no way do we want to rule out anybody from the debate.

Notwithstanding Standing Orders, I take it it is agreed that the Minister of State and Deputy B. Ahern will be called on to speak later.

At the outset I should like to thank the Government, the Government Chief Whip and the Minister in particular for having made this arrangement to enable the House to discuss this very important motion. Indeed I might say that my attempt to bring it up in the House yesterday was largely to ensure that the House itself could provide some mechanism under which it could express its views on this situation at this time, as I think I said elsewhere, not in a party political way. Naturally, as Fianna Fáil spokesman on Justice I was very concerned with developments in the last few days in this respect. I am very glad to see this motion before the House.

In speaking in favour of the motion I should say I do so because of the widespread concern that has been expressed in recent times about the manner in which the laws passed by the Oireachtas here have been applied in the courts. Of course, as we all know, we are living in an age of rapidly escalating violence, vandalism, theft and crime. Daily we see the homes of citizens, their businesses, cars and the persons of citizens themselves being attacked, injured and vandalised. This is a matter about which I know all Members of the House are very concerned. Some groups and individuals seem to believe that they can ignore the Garda, the courts and the community as they go about their wanton and undisciplined ways. We see organised groups of criminals who prey on and entice our youth into a life of criminal activity. We have evidence of the existence of protection rackets in the Matt Jenkinson case. Here we have a brave man who was not afraid to speak out and who is now under the constant protection of the Garda. It is alleged that such rackets are being run in certain Dublin streets. I believe this is something all Members of this House would like to see stamped out of our society. Therefore, our full resources must be directed against those who organise and carry out such crimes.

We are also faced with an illicit drugs problem of alarming proportions. This problem has many ramifications. Quite often when one looks into the background of some of the cases which come before the courts, one discovers that there has been a drugs element involved, even in so far as it may have been just a case of trying to get the money to pay for the drugs habit. Last autumn we made available to the Commissioner of the Garda the resources to appoint a chief superintendent and additional members of the Drugs Squad. In our view this was a crucial step in pursuing and bringing to justice the purveyors of these offensive drugs. That step was taken because we, in Government, felt that dramatic action was needed as a response to the kind of problem we are at present witnessing in our society. Positive results were obtained quickly in increased seizures and prosecutions. But unless those who may be found guilty are prevented from carrying on this trade, through appropriate sentences, as a community we have no chance of overcoming this spreading cancer in our society. At one stage when the former Taoiseach, Deputy Haughey, inquired about the progress being made in this area, he was informed that five members of one notorious family were out on bail with all the freedom of activity that implied.

This indicates a situation about which we in this House must be gravely concerned. As public representatives we come across many instances of people who are brought before the courts for theft, housebreaking, car stealing, assault or other acts of violence and who are let out on bail. During this time they may commit numerous other crimes of a similar nature and end up with concurrent sentences. I have direct examples of these in my constituency, of people who are out on bail, are known to the Garda and are committing further crimes, particularly in the housebreaking area. Obviously, in these circumstances they are not unduly concerned when they set out to commit additional criminal acts.

There has been wide variation in the sentences imposed by different members of the Judiciary in recent times and this has caused grave disquiet among the public. Men who protested peacefully against their employers in the Ranks case were committed to Mountjoy jail. This is well known in the community. A thief who mugged and robbed a member of the Judiciary got what the public would regard as a stiff but appropriate sentence, given the rising level of such crimes. A young unemployed man who comes from my constituency who stole a purse containing £20 got a 12 month sentence and the judge appealed to the Minister to ensure that he served the full term. These are sad developments but unfortunately it is now necessary to make it clear that mugging and robbing will not be tolerated by our society.

In all these circumstances one can only regard as extraordinary the sentences which were given by Judge Gannon in the Fairview manslaughter case. In this instance five young men, acting as a gang, admitted to attacking and robbing numerous people in Fairview Park over a number of months last summer. They also admitted beating and robbing a young man which resulted in his death. The suspended sentences of one to four years have led to widespread concern.

In acting as a gang, according to the reports of the court as carried in the newspapers, they said they were acting as a vigilante group in Fairview Park. I know that the gardaí in that area carry out patrols in the park and I am convinced that if necessary they would step up these patrols, but as far as vigilante groups are concerned they cannot be tolerated in our society. I realise there are difficulties in relation to the level of violence and vandalism, but these have got to be tackled by the community in conjunction with the Garda.

In recent times this House has provided an additional 2,000 gardaí to strengthen the force on the ground in relation to these problems. We must make it quite clear in the House that vigilante groups will not be tolerated. An extra feature which arises in the reports of this case suggests that these young men were acting as a gang in clearing the park of certain kinds of people, minority groups of people. They claim that some of the people they were chasing or pursuing were homosexuals. This is another matter that we must take up very seriously. Whichever minority groups are concerned, they must have the full protection of the law and be clearly seen to have it.

While we are horrified and shocked at this development and regard it as most extraordinary, as most people in the community and the media do, we must appreciate that under our Constitution the position of the Judiciary is entirely independent of the Executive arm of Government. We have cherished this position over the years and I believe that in other circumstances we would be very anxious to maintain that separation, rightly so in the interests of the people. However, we as Members of the Oireachtas must be concerned with the manner in which the laws we pass are applied in the courts in the interests of the public. In passing these laws we, on both sides, debate them and we must be concerned subsequently about reviewing how these laws are applied by the courts. There is a heavy responsibility on us to assess the application of the law and to decide the improvements or new guidelines that should be introduced by way of legislation to protect the interests of citizens. Public confidence in the Oireachtas and in the administration of justice can only be maintained when justice is clearly seen to be done and the punishment is seen to fit the crime. The public are not always clear about the entire separation of the Oireachtas and the Judiciary and naturally they look to the Oireachtas to ensure that whatever laws are enacted will be laws which will work in practice and will produce the required results. As in the Fairview case, only the judge involved has the full information to make a decision. He must take into account the position of each individual before passing sentence or allowing bail.

It is important to realise that in this case the judge involved had the full information. It is not available to us at this stage and we are therefore at a disadvantage in relation to the detailed matters involved in this case, though the reports published of the statements made by the judge and jury make it quite clear that there are extremely serious elements to be considered.

Great attention has been given in recent times to issues involving the courts which are far less critical of our society today. The question of law and order in our communities must receive the Minister's full commitment. The elderly, the weak, the unprotected, and the ordinary citizen must once again be enabled to walk the streets and live their lives without fear of being mugged, robbed, beaten or raped.

We appreciate that all this is entirely in the field and at the discretion of judges under our system and under the Constitution. We must be very careful in this House, while expressing our concern at these events, to make it quite clear that we recognise fully the discretionary responsibilities of the Judiciary and their total separation from the Executive arm of Government. Perhaps the Chief Justice could bring more consistency into sentencing by making arrangements for a regular review at Judicial level. The Minister for Justice could assist by bringing before the House at an early date the measures which he would propose to strengthen the law in relation to bail and sentencing. The Judiciary could make administrative arrangements of their own in relation to the kinds of cases that have been occurring in recent times.

What we are seeking here is an urgent consideration of the arrangements which we could make through legislation to strengthen the law to ensure that the will of the people is reflected in the administration of justice.

These are issues which Members from all sides must endorse and support. There is a very heavy onus on us to ensure this will be the case. Citizens must once again be able to park their cars and enjoy the privacy of their homes without being attacked or set upon, and conduct their legitimate business activities without being robbed, vandalised or threatened.

The tragic case in Fairview demands urgent action from the Minister for Justice and the Government. The Minister must first review and assess this case and its implications and then take urgent action, especially in bringing legislation to the House. I would like to assure him that we as an Opposition will give our full support to the treating of this question in the Criminal Justice Bill as a national priority. We believe the questions which are raised in the Fairview case must be answered. We believe they must be dealt with by the Minister seriously. I recognise the position in which the Minister finds himself. Nevertheless, there is an onus on him to deal with the questions which remain to be answered so that the country as a whole can have confidence in the Oireachtas and in the way in which the law is applied. The nation as a whole is anxious to know what the Minister plans in this respect.

I should like to thank the Minister and the Government for giving us the opportunity to raise this very urgent matter. I believe all Members of the House will be concerned about the questions which arise from the Fairview case. I believe we will be able to find better solutions for the future and we look to the Minister to lead the way in this respect.

The Minister for Justice.

Will anybody else be allowed to speak?

It is a general discussion, but it must close at 5 o'clock.

Limerick East): It would be unreal for me to respond to the motion as if we did not all recognise that it has been put forward in the immediate aftermath of a particular case and that it is, in effect, a reaction to the decision in that case.

What I have to say is influenced, indeed largely determined, by the fact that there has been a long and I believe well-justified tradition in this House that individual court decisions are not criticised here. The Judiciary are independent in the exercise of their functions, subject only to the Constitution and the law.

One of the provisions of the Constitution is that a judge may be removed from office only for stated misbehaviour or incapacity and then only upon resolutions passed by both Houses. Removal in that way is the only sanction.

Those provisions have long been interpreted, in practice, as meaning that Deputies in the House — whatever about what they might say outside it — refrain from criticising individual decisions unless it is necessary to do so in the context of legislation before the House or, of course, unless there was before the House a resolution for the removal of a judge and the decision was relevant.

It is because we as Members of this House and the Members of the other House collectively have this power that Members in both Houses have down the years refrained from the kind of comment that might be construed as a potential threat. That constraint has been, and I believe ought to be, observed especially by Members of the Government and above all by the Minister for Justice precisely because of the office which he holds and because, if a situation arose where the Government were ever sponsoring a resolution such as I have mentioned, it would fall to the Minister for Justice to move it. There is, therefore, a particular constraint on members of the Government generally, and perhaps most of all on me, to avoid any critical comment. It will be clear, therefore, that I regard it as being in the long-term public interest that I should adhere strictly to the tradition that I have mentioned.

Taking the motion at its face value, it asks me to consider whether there is any need for legislation. I am prepared to consider that, but I can offer little prospect that the consideration will lead to anything but a negative conclusion. It is not really a question whether legislation is necessary but whether it is possible or practicable. The fact is that the circumstances of every crime, taking account of the circumstances of the offender as well as of the details of the crime, are literally unique. I believe that it is impossible to provide by legislation for greater uniformity.

I am in favour of more consultation among judges and district justices and, apart from consultation, more readiness on the part of individual members to take account of the consensus among their colleagues as to what sentences are appropriate, for attending meetings serves no purpose unless people are willing to listen. I am prepared to do anything I can with propriety to encourage such meetings, if the circumstances at a particular time suggest that they would be useful.

I think it may be helpful to Deputies if I recall to them the terms of the oath taken by judges under the Constitution. It reads:

In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of [whatever the judicial office is] without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. My God direct and sustain me.

When the implications of that are taken into account, I do not think anybody could add much to it. Even if we disagree from time to time with court decisions, we must accept that they are made in good faith, in accordance with the Judge's oath of office, and legislation can hardly add anything.

I know that some of what I have said can be misinterpreted as meaning that the Dáil should opt out of discussing what can be and is being discussed in the media — in other words, that it can be misconstrued as effectively supporting the allegation that Dáil discussions are often irrelevant to the real issues of the day. But what I am saying is being said in a very special and very limited context. The relationship between both Houses of the Oireachtas, on the one hand, and the Judiciary, on the other hand, is unique. The independence of the Judiciary is at the very heart of our legal system. That independence is, rightly, guarded by exceptional safeguards in the Constitution. It is, as I have said, precisely because the Dáil has a role, and not just a role but important powers in very exceptional circumstances, that it has in fact traditionally recognised that comment in individual cases is inappropriate.

It is in that context that I have felt it necessary to confine my remarks in this way. I have of course no objection to the motion.

The Workers' Party have always advocated a humane approach by the courts to the treatment of offenders, particularly juvenile offenders. The many inadequacies of the system of juvenile justice stem from the conflict between the values of those who administer the system and those who, by and large, come before our courts. The party recognise that much of juvenile crime has its origins in environmental, social and educational factors and only a sustained programme of social reconstruction can reduce both the incidence of juvenile crime and the number of young people likely to engage in crime. We have not and we will not become part of the "Hang'em, flog'em, shoot'em" lobby, who advocate an approach to the courts and to crime more appropriate to Victorian England than to the Ireland of the eighties.

Having stated that general position I must also place on the record my deep concern and the concern of The Workers' Party at the outcome of the trial which has brought about this debate. The leader of The Workers' Party has already expressed his shock at the sentences imposed and has expressed the opinion that in this case the victims have suffered more than those found guilty.

The only reasonable interpretation that can be drawn from the sentencing policy adopted in this case is that the life of a person who was alleged by his attackers to have been a homosexual — and there was no evidence whatever to support this — was considered in some way to be of less value than the life of any other person. If this was the case, it will not have been the first occasion in which the courts have adopted this position. It is on record that a judge in the last 15 years, when sentencing people convicted of the murder of a prostitute indicated that the fact that the person murdered was a prostitute had been taken into account when the sentence was being decided. We do not support the demand that there should be specific mandatory sentences in all criminal cases. Each case must be judged on its merits, but the public have a right to expect that there should be consistency in sentencing policy in our courts generally.

I understand from newspaper reports that one of the young people who was sentenced to a 12 months suspended sentence was sentenced previously to a two-year suspended sentence for the theft of a car. That clearly indicates the inconsistency in sentencing policy which is very hard to justify. There is evidence to suggest that the courts consider offences against property to be more serious than offences against human beings.

There will be cases from time to time where, even when people are convicted of serious offences such as manslaughter, custodial sentences are not appropriate. There was a recent case where a man who was found guilty of manslaughter was given a conditional discharge. The background to the case was so appalling that I have no doubt that had he been sentenced to prison there would have been a public outcry against a custodial sentence. Clearly there is no set of fixed rules to ensure that in all cases where a serious crime is involved a custodial sentence must follow automatically.

The real danger arising from this situation is that it will be interpreted by some groups as an indication of approval at a high level for their own self-appointed role as vigilantes allegedly protecting the community against those they decide are criminal or unorthodox socially or in any other way. If our society does not take a firm stand against this vigilante type activity and spell out clearly our disapproval of it there is no knowing where it could stop. I should like to cite a recent occurrence where a young man was shot and seriously injured as a result of persons taking into their own hands what they considered to be their right to protect themselves and their property. This resulted in the serious injury of a completely innocent person who had nothing whatever to do with an alleged offence.

According to newspaper reports some of those in the communities from which the convicted persons in the current case under discussion came were jubilant. The reports suggested that those who were convicted were now regarded as some kind of heroes. I am quite sure that is not the case generally in those communities and that the vast majority of people there and elsewhere are as appalled at the incident which led to this case as anybody in this House. There is a real danger that some of the contemporaries of those accused and those convicted will see the case as a green light to assault, maim and even kill those whom they may dislike for some reason or other.

Another worrying aspect of this case, and it involves the question of policing generally, is that reports suggest that a number of similar attacks had taken place in the same area in the months leading up to the killing of Mr. Flynn, that these had been reported to the Garda and it is alleged that nothing had been done about them. This is a very serious allegation and should be investigated thoroughly by the Garda and the Minister for Justice.

It will also, I hope, provoke those in the Department of Justice to look again at the proposals for community policing produced last year by the Association of Garda Sergeants and Inspectors. Their proposals which appeared to have been dismissed out of hand by the then Minister for Justice, were an attempt — and I might add that I do not necessarily agree with every single one of their proposals — to come up with a sensible and humane approach to problems of crime and vandalism.

If this approach to policing had been adopted before, there might have been no killing in Fairview Park and we would not be having this debate. I hope the Minister will look again at these recent proposals and that they will be considered together with any consideration of the need for legislation to ensure a reasonable degree of uniformity in sentences in serious criminal cases.

I hope I am not alone in finding absolutely reprehensible the continued use of the phrase "queer-bashing". It has been used widely in the newspapers and on RTE over the past few days. I am sure the vast majority of people find it most offensive. Journalists and others responsible for editorial policies in newspapers and RTE in particular should ask themselves if the use of this phrase does not to some degree appear to lessen the seriousness of a crime. A killing is always a killing. It should be viewed as such and described as such. People who come up with headlines using these terms should consider the feelings of the victims and the relatives of the victims in these cases.

I will be brief because I know there will be a number of speakers. I should like to thank the Government for allowing us to have this debate and the Minister for coming into the House. The debate originated in a short formal discussion between the Leader of the Opposition and the Taoiseach this morning which was followed up by the Whips. This gives us an opportunity to do something which a number of us have been trying to do since we came into the House, that is, to discuss matters which arise on a day to day basis and not make Dáil Éireann irrelevant. I take note of the Minister's statement that he does not want to opt out in any way and at the same time put on record that the Judiciary and the Dáil have separate functions under the Constitution. I know the Minister will accept that in the drafting of the motion we took that into account and that we would not create a precedent. Perhaps we live too much by precedent and accept decisions which are not in line with modern Ireland. Those who have spoken already, and those who spoke to me during the day, feel that a decision like this must be discussed in this House. We are elected to this House. We have a duty to the people who are concerned about such decisions.

Our spokesman, Deputy Woods, made it clear that we have not got the full facts of this case and cannot give a full account of what happened. I would hate to feel that the fact that it happened in my constituency would make me more bitter about the decision than anyone else in this House. Last September other Deputies and I attended a meeting adjacent to Fairview Park. At that meeting Mr. Flynn's brother and his father quite understandably lost control of themselves as it was only days after the funeral. They expressed their views at that meeting. At that stage all the Deputies spoke: we said we were against hanging and that we believed justice would be done in the courts. However, I feel that justice has not been done in the courts. I do not know if the judge involved had available to him information that I do not have.

It is very sad that we, as elected representatives, have to go outside and try to convince people we have a fair Judiciary. We have a Garda force who are trying to do their best and who continually complain they are being hampered in their actions because of our legal system. This is another example — not the only one — of how ineffective is our policing and legal system to cope with the serious crime that exists in this city and in other cities. I take the point made by Deputy De Rossa that there are many reasons for this. We want to convince the people we are in control of the position and that we have a Judiciary and police force who can cater adequately but I am afraid the recent decision is a retrograde step. Unless there are major changes in legislation it will be increasingly difficult to prove that to the people. As Deputy Woods said, they see us in control of the Judiciary in some way or other and, while we are not in that position, I think we should try to see how we could have more influence. For robbing a car a person can get a suspended sentence of two years but for his admitted role in a crime that led to the death of an individual he gets half that sentence. My social conscience will not allow me to agree with that.

If the judge concerned had reasons for making his decision he has a public obligation to let us know the reasons. This case has led to far too much disquiet. I know that I will have to say much more on this subject in my constituency, like other Members. Every Member of the Dáil will have to defend this House elsewhere. However, on this one occasion, on a totally non-party basis, with the agreement of the Taoiseach, the Minister for Justice, the Leader of the Opposition, the Fianna Fáil spokesman on Justice and the Whips we have reached agreement on debating this matter. I hope our friends in the Judiciary will take account of what we are saying and what the people of the country are saying with regard to the decision.

(Dún Laoghaire): Our short debate here proves that politicians elected to this House can come together at times and express their views in harmony. In this debate we have given the Opposition the opportunity of making their position quite clear. Without showing any disrespect to the Opposition, for the sake of democracy it is important that the Minister of the day should have the opportunity of coming in here and putting on record the fact that there are certain things politicians, and in particular Ministers, cannot do. For that reason I respect the restraints imposed on us as elected Members, particularly those of us who are members of the Government parties, in what we say on this motion.

I recognise that the independence of the Judiciary is extremely important. However, as elected representatives we must show the public we are prepared to come here and express their fears. Irrespective of what party we belong to, we must let it be known to those in office that as elected representatives we must deal with the dreadful crime wave throughout the length and breadth of the country. Most important of all, we must give support to the Garda Síochána who are being asked to get the criminals and bring them to court. They must feel they are getting our support and the punishment must be seen to fit the crime. As an individual if I park my car for five minutes over the time in St. Stephen's Green or elsewhere I will have to pay a parking fine. It is very difficult to reconcile that with the fact that someone can walk out of court with a minor sentence in respect of a serious crime. The Minister has put on record his position and what he will endeavour to do, taking into account all the circumstances.

In my constituency there were a number of irate people who were concerned about a public house where drugs were supposed to be passing hands. Many people went to court and objected to the renewal of the licence and subsequently I got numerous letters and phone calls inquiring why it was renewed. My difficulty as a public representative was to try to explain to people why I could not interfere with the decision of the court, which is the way it should be. A debate such as this is important so that we can tell the electorate we have an independent Judiciary but by voicing our concern perhaps those people involved in the judicial process will reflect on what has been said in this House and outside it.

The public are fearful that law and order is breaking down and their views must be respected. During the last election when I was canvassing during the day I was astonished to find in housing estates that doors were locked and chained and people were afraid to open them at 3 in the afternoon. It brought home to me the situation in urban Dublin where women were afraid to open the door in broad daylight. That did not come from reading magazines but from experience, either personal or the experience of a neighbour. That kind of fear is creeping into life in the area I represent. It is a sad state of affairs and we must try to do something about it.

I am delighted we had this short debate. I thank the Minister for coming here at short notice to answer the motion tabled in the names of Deputy Ahern and myself. I am sure that something good will come out of such a procedure.

Before you came into the Chair there was a discussion with the Ceann Comhairle and the Whips and it was agreed I could speak as well as Deputy De Rossa.

I have every intention of allowing the Deputy to speak.

I was told it would rotate.

That is so. If the Deputy would allow Deputy Colley to speak, Deputy Mitchell will speak after him and then it will be the Deputy's turn to contribute.

As indicated, the spirit behind the moving of this motion was that we would not speak at undue length and I hope to comply with that. This is a unique occasion. I do not remember a motion like this being put forward jointly by the Whips on both sides of the House. It is unique also in that there have been specific references to and criticisms of a particular case and judge. The Minister has indicated what the practice in the House has been in that regard. I fully respect that practice and know that it was built up over the years as a result of accumulated wisdom.

We should be clear that there is no great advantage for anyone if we in this House react to any situation on the basis of an emotional wave. At the same time, as was clearly put by Deputy Ahern, there is need to reflect in the House the general public feeling in regard to a particular case that has occurred. We are trying to find a balance between the two requirements. It is not easy, but it is worthwhile remembering that there are two sides to be balanced if we want to get the right result in the end.

As far as this case is concerned, I am particularly saddened about it since I grew up very close to Fairview Park and spent most of my young life in the park. At that time there was nothing like the kind of problems being experienced there now. They are symptomatic of the changes in our society and the kind of problems we are grappling with, rather unsuccessfully, through the Garda and the courts.

The motion asks the Minister to consider whether there is need for legislation to ensure a reasonable degree of uniformity in sentences imposed in serious criminal cases. There are problems which we should recognise, and we should not try to mislead the public into thinking that it is a simple matter of bringing in legislation. The furthest we could contemplate going in legislation would be to make mandatory or minimum sentences. A grave difficulty, which should be recognised immediately, is that if a sentence is mandatory and must be imposed for a certain crime, and if it is regarded in certain circumstances as being too much of a punishment, every effort will be made to find the accused not guilty of that particular crime. That is the practical effect of mandatory sentences. It has happened on numerous occasions in this and other countries.

The road to what we are trying to achieve does not lie in that direction. I am inclined to go along with the Minister to some extent and say that the solution probably does not lie in legislation. I do not rule out the possibility of legislation and would wish the Minister to examine it very closely. It is more likely that the answer lies in regular consultation between the Judiciary at different levels.

In the case we are talking about it is the High Court that is involved. Usually complaints in this regard relate to the lower courts. The Minister has a point when he says that there is no use in having consultations when people do not listen. I have some idea of what he had in mind. There are certain members of the Judiciary who have indicated an inability to listen even to their colleagues. Perhaps the vesting of certain powers in the President of the High Court in relation to judges of that court, in the President of the District Court in relation to that court and so on, powers which they do not have at present, might prove more fruitful in the case of members of the Judiciary who will not listen to their colleagues.

It is true that the kind of case which has resulted in this motion tends to discourage the Garda and to encourage criminals. I thought the Minister's reaction was somewhat negative. I well understand the problems to which he was drawing our attention. But the effect of this kind of case — there are many of them — and the discrepancy which can arise in the degree of severity of sentences must discourage the Garda and encourage criminals so much so that the Minister must do more than point out the difficulties and problems. I urge the Minister to make a special effort, perhaps by consultation not only within his Department but outside it, to see if some more satisfactory solution to this problem can be found. The present situation is unsatisfactory. I do not accept that nothing can be done about it. I actively discourage the idea that there is an easy solution to this problem or that one produced on a wave of emotion is likely to be satisfactory.

While I recognise the problems outlined by the Minister, I urge him to utilise all the resources available to him within and outside the Department to try to achieve a more satisfactory situation in regard to uniformity of sentences within the necessary limits which must apply in such cases.

The motion before us is one possible answer to a specific problem. I am not sure if it is the correct answer but I am quite certain that the problem is very serious and that it needs some solution.

I do not think the motion is about one bizarre ruling in a specific court case. It is rather about the final coming to a head of a festering sore in the judicial and court system: the increasing rash of inexplicable, unintelligible and inconsistent sentencing which leaves the public and Members of this House bewildered. That problem has gone on for a long time and anyone in the House, particularly those representing urban constituencies, can point to extraordinary decisions at all levels.

There is a natural reluctance for anyone in the House to become too embroiled in criticisms of individual judges or decisions. As previous speakers pointed out, there is a tradition in this respect which none of us wishes to trample on. The separation of powers, the constitutional integrity of the courts and the tradition of non-comment in this House on court decisions, is good. The unique autonomy which the courts and judges enjoy implies extraordinary and unique responsibilities on members of the Judiciary and on the legal system generally. The free from comment operation of the Judiciary must mean they have an extraordinary obligation to ensure that there is no possible basis for critical comment either by the public or politicians who are naturally inhibited in this area.

It is with some reluctance that any one of us wishes to become involved in what is a unique and somewhat unpleasant but necessary debate. The Minister for Justice rightly said that there is a Dáil mechanism for dealing with this difficulty. To my knowledge it has not been used in the history of the State or, if it has, it has not been used to its ultimate conclusion, that is, the impeachment of a specific judge. I hope that the Judiciary and the legal system, in consultation with and working with the Minister, can so order their affairs that that would never be a necessity. For this House to think in terms of impeaching a judge must mean that somewhere down the line we have collectively failed to ensure that not merely was justice done but was seen to be done. Although that remedy exists, it is not a practical one for the problem we are talking about.

As Deputy Ahern rightly said, despite the inhibition on the House and Members, there is a primary obligation on the House to tell the truth. We represent the people and must represent the truth. When increasingly it becomes evident that they are concerned, dismayed, bewildered and cynical about standards of injustice which operate where there should be clear and unequivocal standards. The dissatisfaction in this instance is essentially about decisions which, unfortunately, are inconsistent or unclear. To some extent we are all at a disadvantage in not having the details of any case but, nevertheless, the extremes of sentencing in a variety of cases in recent years at District Court and High Court levels must leave one almost breathless at how reasonable people could come up with such conclusions.

No judge should make a decision which leaves us bewildered. Justice must be seen to be done. In that respect, there have been many clear omissions and it would not be too much to expect in future that, as a regular feature of announcements of decisions, a special attempt should be made by members of the Judiciary clearly and fully to explain the thinking behind their decisions. Perhaps in their thought processes we might find an explanatory feature which would reduce the anger which has attended some decisions, particularly the decision which is the focal point of today's debate.

The essential problem is that the accountability of the Judiciary is only to the oath they took on assuming office. I will try to make a positive suggestion rather than ventilating the anger of so many people. I do not wish to get involved in this case or in the many contradictory and extraordinary implications of the statement of the judge. Perhaps it might be discussed in another debate. I want to speak instead about how we can repair the damage which is being done systematically to the principles of justice which we all hold dear and for which we wish to see increasing public respect. The Members of the House, the Judiciary, the public and the dogs in the street know that there are, unfortunately, a small number of judges at present serving about whom it could reasonably be said that the best service they could give, after many years of distinguished service, would be to relinquish their posts or to take up occupations elsewhere. They are causing great damage to the work of other members of the Judiciary, the Garda and the principles of justice.

How can a Minister for Justice, who has no direct statutory control over or involvement in court procedure preserve the constitutional integrity of the courts and yet redress the growing public cynicism and degeneration of standards? It is a challenge to each of us but especially to members of the Judiciary and, in a broader sense, to members of the legal profession, each of whom knows better than the average citizen what is going on.

There is a mechanism which I understand is probably more honoured in the breach than in the observance at District Court level which allows for regular consultation between members of the Judiciary. I strongly urge that the presidents of the appropriate courts should convene meetings at regular intervals with their colleague judges with a view to coming to a common understanding of appropriate standards in relation to crime generally. It would be undesirable to lay down mandatory sentences for specific crimes because they could not take into account the unique circumstances in each case, including the weighting of moral and other guilt. At the other extreme, some of my constituents have been given long sentences for first offences involving theft of very small sums of money, whereas people who have committed serious crime, such as the taking of life, go free. I suggest that that mechanism be employed urgently. The Director of Public Prosecutions might consider whether he could have a role in overseeing the utilisation of that mechanism which should be exercised regularly and seriously, not just as a charade to pretend that something is being done. If a voluntary improvement in the present situation does not take place there will be inexorable pressure on this House, on the Minister for Justice and the Government, to take action in its stead. I do not know what kind of action that would be and I do not really want the State to become involved but unless the Judiciary put their own house in order, the obligation will rest on Members of this House to do it for them. I will be more than willing to lend my voice to that corrective process if correction is not carried out.

I would like to thank the Whips for their initiative and to express my pleasure, even on such a sad occasion, for having this debate which I hope will be constructive. I appeal finally to the members of the Judiciary, and to the legal profession who are in possession in a peculiar way of knowledge about individual members of the Judiciary, to take whatever action is open to them and to exert whatever pressure is necessary to ensure that we rid our system of this cancer. If this does not happen we will no longer have a shred of respect for our court system. We will have a demoralised police force and a continuing spate of bewildering decisions which will leave us much the poorer. I hope, therefore, that today's debate will be a watershed in this scandal.

I will be very brief as I know other Members also wish to contribute. The motion before the House has come as a direct result of a decision in a specific case. It is inescapable to avoid commenting on that case and to be very critical of the decision made in it. A number of Deputies have stated that specific cases are not referred to but the same Deputies have found inevitably that they had to refer to cases and were openly critical of them. Inevitably they referred to that particular case and were themselves openly and directly critical of it. When I heard the verdict my reaction immediately was one of bewilderment. Indeed, from talking to people I know that reaction is widespread among those I represent and it is my intention to express the concern of the people I represent. It seems to me incomprehensible that a group of persons who admitted guilt in such a serious crime could be allowed to walk away scot free.

As the motion before us has it, this highlights the very glaring inconsistencies in decisions over a long period. Approximately six months ago I had occasion to become involved in a particular case. I was asked to speak up, as public representatives are very often asked to do, on behalf of a young girl who had stolen a tennis racket and been sentenced to one year in prison. That sentence was appealed. The conviction was upheld and the sentence was increased to two years imprisonment. That was the penalty imposed for stealing a tennis racket. Now that is in very sharp contrast to what has happened in this recent case and these inconsistencies become all the more blatant and exercise the minds of the people when they see what happened in another instance which held the attention of the House recently, namely, the imprisonment of trade unionists who were fighting for what many believed were their just rights. They were imprisoned while people who had committed what the man-in-the-street would see as murder, though the court apparently saw it as other than that, are allowed out scot free. That to me and to others is utterly incomprehensible.

My primary concern in this whole matter is for the communities among whom the court has set individuals free in such circumstances. Deputy De Rossa referred to a report in one morning paper which said there was jubilation in the area from which these individuals came. I and other Members of this House represent those areas and, without any shadow of doubt whatsoever, there was no jubilation at all in these communities. In fact the reaction in the immediate communities is one of very real fear. This is the reaction that prompts me to be so critical of the decision of the court, and not just of this recent decision but of similar decisions in the past. It is all very well to stand up here and talk about precedents and so forth when the reality is that decisions like the one we are talking about produce such desperate fear, particularly among elderly people — indeed not just among the elderly but among all sections of the communities there. There have been many instances in the past where persons released on probation have shown themselves ready to commit further criminal acts. There is widespread fear among the people that a similar situation may result in this instance, an instance we have found it necessary to discuss in open debate.

There is a widely held view that the courts are failing, indeed, have failed, in their specific responsibility which, so we are told, is to protect the community. The real danger, as I see it, is in the possible reaction of the people: very responsible citizens may now take it upon themselves to take the law into their own hands. We all know that would be a most retrograde step. But that is the response of responsible people to decisions like this. It is not one of jubilation. It is one of fear and despondency at the failure of the courts and because of that failure, they may think it necessary to take the law, as I said, into their own hands. Other speakers have referred to the appalling injustice in this particular case, a case in which the family have suffered far more than the perpetrators of the crime. That again highlights the failure and the total inconsistency of court decisions, particularly this most recent decision.

This case highlights a number of issues and not just the one referred to in the motion. I refer, first of all, to the need for a reasonable degree of uniformity. It also highlights the need to look at what is in effect the absolute power of judges, judges who have shown such extreme inconsistency. I find it very difficult to accept that legislation is not required to change the present unsatisfactory position. I agree with statements made by other speakers yesterday that mandatory custodial sentences should be imposed where vicious attacks on the person are concerned. Custodial sentences are absolutely necessary to protect the people.

The major question now arises as to what happens now. What follow-up will there be to ensure that individuals released in such circumstances do not continue to pose a threat to the community? What precisely is involved in the probationary service? To me, there is virtually nothing to ensure that individuals do not continue with their criminal activities. But, even if custodial sentences were made mandatory, the facilities available are quite inadequate to help persons capable of such crimes of violence. There are many much younger people loose on the streets of our cities in whom the same viciousness is being allowed to fester because the State has failed to respond to reports such as that of the Task Force on Child Care who recommended the provision of services for children at risk, children who, without adequate educational facilities, will inevitably become hardened and vicious criminals. It is not simply a matter of being critical of individual decisions of the Judiciary. I see that criticism as necessary, perhaps, in some instances; but in a sense I also see it as passing the buck. In my judgement the State has failed and we have failed, and so long as the report I referred to gathers dust on the shelves and nothing is done, we will inevitably produce young people who will inevitably end up in circumstances such as we are now discussing.

I will try to be as brief as possible and not go over ground already covered. I welcome the opportunity to have this debate and particularly the fact that there were only short exchanges across the House. It is necessary for us to have some consideration of uniformity of sentencing but the House cannot be in any way surprised about the lack of uniformity of sentences or lack of appreciation of the difficulties facing the community since there is uniformity in the appointment of members of the Judiciary. There have been very few members of the Judiciary from, for instance, Crumlin, Drimnagh, Ballyfermot, Cabra or St. Theresa's Gardens. It might be thought surprising that I would suggest that people from that area might become judges but I do not see why they should not. People there face daily the difficulties that the crime epidemic brings to the doorsteps of many people in the city. Many of those areas are bigger than most of the towns throughout the rest of the country, and these people must endure daily the sort of things that judges from comfortable backgrounds do not experience and against which they are relatively insulated. I do not wish to speak in derogatory terms of the Judiciary, but if some of them had to live through some of the experiences that many of the people I represent have to face daily they would certainly consider uniformity of sentencing very quickly. Some consideration should be given, particularly in the lower courts, to the magistrate system whereby people representative of the community can pass sentences recommended by those legally competent to advise. I ask the Minister to examine this point.

There is very little public examination of the Judiciary. Certainly it does not occur in this House except very infrequently and then by back door motions such as this one, which I welcome. The press do not seem to be very good at coming to terms with that minority of the Judiciary who do not uphold the same standards of performance as their colleagues. Some method of examination should be found. One problem of the society we are in is that those in very comfortable and secure positions such as the Judiciary and senior civil servants have no difficulty whatsoever in getting away with bad decisions which they make and for which they are responsible, because of the way the system works and the way Ministers and politicians are expected to take criticism and responsibility for everything. Some way of examining the performance of the judicial system should be introduced so that from time to time we can look at the uniformity of sentencing.

We should not be very surprised if we do not always get the 100 per cent just judge that we would like to get, because of the system of appointment of judges. People are not appointed to the Judiciary on the basis of competence and excellence, although most of them have the desired standard of excellence and competence. However, a small minority who do not reach that standard are appointed because that is not the basis of their appointment in the first place. It would be a good idea if this House were to have a Judiciary committee to examine the appointment of judges, particularly in certain areas, before those appointments take effect. We want to ensure that the people appointed will carry out the work that we want them to carry out, that they are competent, able and determined to do the work expected of them. We should interest ourselves in the qualifications, in all senses of the word, of the people offering themselves for that job.

I will be very brief but, nevertheless, very clear. I cannot agree with the idea of uniformity of sentencing even in serious criminal cases, but there is a need for legislation to ensure a reasonable degree of uniformity in the selection of judges. Further, there is need for legislation to ensure the avoidance of hit and miss justice which can and does occur in the courts. Legislation is needed to prevent the appointment of political hacks — I support Deputy Mitchell in that — and the more efficient removal of incompetent and crackpot judges. Also there is need for an inquiry into the establishment and running of the Honourable Society of Kings Inns, their imbalanced and elitist system of selection to the exclusion of a large section of our population, and the often biased and open-to-influence decisions by that so-called illustrious body in examinations. The resultant body of judges is not representative of the total community and cannot and will not be so until the control of entry to the Bar is removed from the Honourable Society of Kings Inns and until the appointment of judges is removed from politicians to an independent body.

On a point of order——

This was a very relaxed debate and earlier the Leader of the Opposition indicated that we should let it go to and fro. I looked to the Opposition benches and no-one was indicating. Deputy Flaherty will speak now, and Deputy Harney will follow and five minutes are left.

Deputy Harney was standing when you took a second speaker from the other side.

We were unaware——

On a point of order, I appreciate your remark about two ladies but this is the Dáil Chamber, a place for politicians. With all due respect to you and your decision, this is the third time I have tried to get in on this debate, and this next speaker will be the third from the same party.

(Dún Laoghaire): Maybe we could sit for another ten minutes and let everyone who wishes to speak do so.

There is a Standing Order that we finish at 5 p.m. Would Deputies agree to divide the five minutes between the two ladies?

On a point of order, if Deputy Barrett's proposal is acceptable we should accept that it is an important debate and some other Deputies are trying to get in. If they all speak briefly we could agree on an extra ten minutes.

By agreement we can extend it to 5.10 p.m., but we will be cutting into an Adjournment debate. It is by agreement.

I make no apology for bringing back the debate at this point to the individual case which gave rise to the introduction of this motion. I remind the House that the victim of this manslaughter was a young man who was in full-time employment, who was from a stable family and a stable background. His death was mourned by a community whom I represent. His death was the result of admitted manslaughter for which a group of young people were convicted, and now they are free again. Those facts cannot and should not be avoided and they are calling for some immediate answer and satisfaction. I find it extraordinary that no answer seems to present itself.

A number of speakers mentioned the point that the judge in passing sentence gave no explanation. It is common in cases of serious weight or significance that the judge will indicate the reasoning behind his sentencing. In the past year in this country we had a number of miscarriages of justice which were publicly seen to be so in relation to sentencing. In those incidents the DPP found it possible to step in and initiate some form of action leading to reconsideration. Is that possibility at least open in this case? We cannot absolve ourselves from future responsibility in relation to the outcome for the individuals involved in this or similar cases if there is no check and if we continue not to provide for some form of check on sentencing. I ask the Minister for Justice to see if there is any role for the DPP here because there is an immediate need to respond to this case as well as looking at the general principles raised by this problem. The Minister and the Government must consider the full extent of the powers available to the Dáil in this case. The consequences have been mentioned by a number of Deputies. There is a very serious difficulty for any of us going back to our constituencies and I, like some of the other Deputies who spoke, represent a constituency where people are coping with this kind of crime at a higher level and more regularly than are many other residents of parts of this city and the country.

We are on very weak ground in asking the people to have faith in the policies of State and in our judicial system, because of such decisions. Many other Deputies raised the point that if the law is so unjust it is an encouragement to others to take the law into their own hands. As Deputy De Rossa mentioned, our constituency has seen a most tragic outcome of such an incident where a young, innocent victim was shot by persons taking the law into their own hands.

I support the general motion and call for some specific action in relation to this particular case before us. The motion is that there is inconsistency in sentencing. In my own constituency, a young girl, not involved in any kind of criminal activity, with a very clean record, became involved in a disastrous marriage. Within that marriage, she had a child. The husband became extremely violent, the child was battered and a court case followed. The man got a suspended sentence. Within six or seven months there was yet another case in relation to his attack on his wife which caused her fracture and concussion. Again, he received a suspended sentence. Within a short time his wife, who is physically a tiny person, took the law into her own hands and stabbed her husband, which was a very serious crime. The wife was given two years' imprisonment and is still serving that sentence. In the meantime, the husband having escaped from two previous possible convictions, engaged in another crime — this time against an old person. At this stage, the law finally took action against him. In that, as in many of the cases outlined by other Deputies, there is serious inconsistency. We must have a full and extensive look at our powers and responsibilities in relation to the courts and to the development of some checks on our judicial system. We have spoken about the role of a democracy, but no democratic institution should be without some form of check.

As there are other speakers awaiting their turn, I will not delay the House unduly. I am delighted that this motion has come before the Dáil. If the Dáil is to respond to public pressure and to be seen to bring in the legislation needed to ensure people's confidence in our judicial system, we must be more than a debating society. In any debating society the members can put forward their ideas, but I detect a tone in the Minister's speech that he welcomes the debate but implies that nothing can happen, that we can talk about it for as long as we like but can do nothing. That is an extraordinary situation.

I agree with a lot of what the Minister said. I appreciate the independence of the Judiciary and would be very reluctant to suggest that that independence should be removed from them. However, extraordinary decisions require extraordinary action. Recently, when the phone-tapping scandal was being unfolded by the Minister, he said in a public interview that he had called in the Garda Commissioner and Assistant Garda Commissioner and told them that the public just would not accept that situation, that there was a public outcry and disquiet and because of that he felt it his duty to speak to these men. Now, because the people are appalled by the decision made this week, it is the Minister's duty to call in this judge and ask him to account for his decision. That may be interfering with the Judiciary, may be beyond the Minister's power as Minister for Justice and may be an abuse of his power, but it is his responsibility to the people. I made this suggestion to a journalist this morning, a headline followed and I have been amazed at the number of telephone calls I have received from people throughout the country who are also absolutely appalled at this decision.

As Deputy Keating so rightly said, this is not just one decision in isolation. For the last couple of months, I have noticed a complete breakdown of our judicial system. Time and time again, people come before the courts and receive suspended sentences. We have spent many hours in this House recently debating the right to life, particularly of the unborn and are about to have a constitutional referendum to protect that right. Yet here, somebody who takes another's life is allowed to roam free through our streets. If we, as public representatives, are to be responsible to the public and are to take effective action, it is not just enough to have a debate in this Chamber. I must disassociate myself from the remarks of Deputies Mitchell and Skelly. It is not just because of the manner in which judges are appointed or because they are incompetent — I do not believe that they are. We must, as a legislative assembly, be seen to take action. The Minister, in the public interest, must speak to the judge and ensure that the public know that he means business. Because of the public response to such an extraordinary decision and the manner in which the decision was arrived at, this judge should be asked for his resignation. That is required in the interest of the public and of our judicial system. I go to many meetings in my constituency and the Minister has received a deputation of representatives from that constituency——

The Chair understands that this debate is to conclude at 5.10 p.m. and there is one more speaker.

I appreciate that. The Minister is aware that we go to public meetings where the public outline to us many cases of young offenders who have been up before the courts being set free. The people will lose complete faith in our democratic system unless action is taken in this regard.

A Cheann Comhairle, I would like to reply to Deputy Harney——

Deputy Mitchell, please.

Deputy Harney spoke about——

I would ask Deputy Mitchell not to invade further.

But Deputy Harney said——

Deputy Mitchell is out of order. Will he sit down, please? Deputy Birmingham.

I will not make a speech because of lack of time, but will make three points. Firstly, the most important thing which has happened this evening is not any of the individual contributions, but the fact that such a debate, without precedent, should take place on a motion in the joint names of the Government and Opposition Whips. The significance of that should not be lost on anyone in the House, on the media or on anyone else involved in this whole issue. My second point is that in every criminal case two parties come before the court for justice — the accused and the people of Ireland represented by the Prosecution. An elaborate system of appeals exists to protect the right of the accused. It would appear that we need to look at the whole question of the right available to the Prosecution to appeal. Other jurisdictions have brought in, as a matter of form, that the Prosecution can appeal against over-lenient sentences and it is time that we looked into this matter. Given the size of our present High Court bench, it might be appropriate to look at the question of a criminal division with a small number of judges with background experience in that area dealing exclusively with criminal cases, rather than these cases being spread around as at present.

Deputy McGahon for one moment.

Unlike Deputy Keating, I have no qualms about criticising the judge in this case, or indeed any other of our judges. The decision in this case is unbelievable. It is, unfortunately, a sad reflection on the absence of law and order. That absence is directly attributable to the failure of successive Governments and, indeed, is an indictment of the previous assemblies in this House. The absence of law and order is on a par with the state of the economy and must be treated as an absolute priority by the Government.

This judge is nothing short of incompetent. I agree totally with Deputy Harney's suggestion that he be removed from the bench. The people have no faith in the Judiciary and I would pose the question: "Was the judge in full command of his faculties?"

Question put and agreed to.
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