Criminal Justice (Community Service) Bill, 1983: Committee Stage (Resumed).

Section 1 agreed to.
NEW SECTION.

We have two amendments to this section. By agreement amendments Nos. 1 and 2 can be taken together.

I move amendment No. 1:

In page 2, before section 2, to insert the following new section:—

"2. — This Act applies to a person (in this Act referred to as an ‘offender') who is of or over the age of 15 years and is convicted on an offence for which, in the opinion of the court, the appropriate sentence would but for this Act be one of penal servitude, of imprisonment, of detention in Saint Patrick's Institution, or commital to an institution, but does not apply where any such sentence is fixed by law".

On Second Stage I welcomed the Bill in general, despite some reservations I had on its limitations and the fact that it is not a total approach to the whole question of petty crime and juvenile delinquency. Our amendment proposes to reduce the age for eligibility for community service orders. Since the minimum school leaving age is 15 years, and since 15 years is also the age at which the right to employment is recognised, it is logical that community service orders should apply from that age. The right to employment is recognised at the age of 15 years under the Protection of Young Persons (Employment) Act, 1977.

The amendment in my name is a separate amendment and reads:

In page 2, lines 26 to 29, to delete all words from and including

"for which, in the opinion of the court," down to the end of the section and substitute the following "in respect of which the court would be entitled to impose a sentence of penal servitude, of imprisonment or of detention in St. Patrick's Institution, but does not apply where any such sentence is fixed by law".

Section 2, as drafted, means that the Bill will be applicable only where the courts have decided that it is appropriate to impose a custodial sentence on the offender. This means it can be used only in more serious cases, or where the offender already has a bad record. It means the Act cannot be applied in cases where the courts feel a suspended sentence or a fine is more appropriate than a custodial sentence, for example, in a case of larceny or burglary where small amounts of goods are involved, or in the case of a first offence.

There are many instances where the courts might feel the offender ought to be punished or taught a lesson, but would baulk at imposing a custodial sentence they might otherwise wish to impose because of family circumstances. For instance, the offender might have five children or elderly parents dependent on him or on her, and the courts would not want the offender to lose his or her job. In this sort of case the courts would probably value some intermediate punishment for a significantly large group of offenders. I put down the amendment to give the clear option to the courts in cases where a lesser punishment might apply.

As against that, the Bill provides that the offender must consent to a community service order. It could be argued that, faced with the choice of a community service order, a suspended sentence, or a fine, the offender would always opt against a community service order. This point could be overcome if the courts were entitled to impose a suspended sentence in addition to a community service order. Arguably there would be little or no advantage to an offender if he consented to a community service order.

I put down this amendment in a spirit of trying to be helpful about the Bill and its future use. I will be interested to hear what the Minister has to say. It must be borne in mind that the courts would be entitled to and would probably inquire from an offender whether he would consent to a community service order before indicating whether they were disposed to impose a custodial sentence, a suspended sentence, or a fine, in the event of the offender refusing such consent. This would give a valuable flexibility to the courts. I am concerned that otherwise the courts may be restricted in this to very serious cases, and the extent to which the courts could use this measure would be limited. I put down the amendment in that context and I will be very interested to hear the Minister's views on it.

Limerick East): On the amendment in the names of Deputy De Rossa and Deputy Mac Giolla, as a general rule persons under 16 years of age are not sentenced to detention in St. Patrick's, or to imprisonment and penal servitude. However, they can be committed to institutions under the control of the Department of Education. In my view to accept the amendment would interfere with this, and I do not think the House should interfere with it at least until the whole area of child care comes before the House for consideration in the context of the Children Bill now being prepared by the Minister for Health. The question of the proper way to dispose of a charge where the offender is under 16 years of age should more appropriately be considered in the wider context of the Children Bill.

The question arises: why pick 16 years of age? Under English legislation the minimum age is 17 years. It is being reduced to 16 years as a result of their Criminal Justice Act, 1982. The practice here is that St. Patrick's Institution caters for offenders between 16 and 21 years of age. It suffers from serious over-crowding. Now, 16 years olds account for about a quarter of the committals to St. Patrick's, so there is a case for having the age 16 years rather than 17 years. The suggestion in the amendment is that we should fix a lower minimum age. As I pointed out already one of the objectives of the Bill is to reduce pressure on the prisons. People under 16 years are not usually committed to prison. They can be committed to schools under the auspices of the Department of Education.

There will be another problem as well which is more of a general nature, that is if we were to pitch the age below 16 years it could raise a conflict with the spirit, if not the letter of existing legislation designed to protect young people in employment. It would be difficult to have a situation where people under 16 were sentenced by the court, in effect to work, where there would be other provisions, the spirit of which would be to prevent young people from being in employment at too early an age. I am opposed to the amendment for those reasons.

With regard to the amendment in the name of Deputy Woods, to accept this particular amendment would be contrary to an important principle of the Bill. The intention of the Bill is that community service should be an alternative to imprisonment or detention in St. Patrick's Institution, in the sense that a court should make a community service order only in a case where it feels it is its duty in accordance with proper sentencing practice to pass a sentence of imprisonment or of detention in St. Patrick's. That is to say the offence must have been of such gravity that in the ordinary way a custodial sentence would have been called for. This idea is brought out by the provision in section 2 that the court may make a community service order where in its opinion the appropriate sentence would otherwise have been a custodial sentence.

The amendment would abandon this important requirement. If the amendment were adopted the mere fact that the offence could in law be punished with a custodial sentence, however trivial the offence was, would enable the court to make a community service order. For example, the court might consider that the case is one that could be sufficiently dealt with by a fine or by probation. In that event, it would be quite inappropriate that the court should make a community service order. I do not mean to suggest that if the amendment were adopted the courts would act in a arbitrary way in exercising their new power. I have no doubt that the higher courts would, if necessary, lay down guidelines in this respect. I should expect that the guidelines would be very much in line with the text proposed in the section. At any rate that is what I hope they would do. It makes it all the more desirable that the guidelines should be laid down in the Bill itself.

I understand that the laws originally introduced in England allowed freedom to judges to implement community service orders as a sanction in general as a substitute for fines, suspended sentences or probation. One of the objects of the Bill is to relieve pressure on the prison system. One of the objects is that an alternative sanction would be available to the courts which they would exercise instead of sentencing somebody to prison. If it were simply another sanction which could be implemented freely instead of probation, fines or a suspended sentence, there might be a tendency that many people who are now dealt with by means of fines and other sanctions would be put on community service orders. Obviously, community service orders will have to be operated and controlled by the probation and welfare section of my Department.

One of the principles in the Bill is that it would be an alternative to a prison sentence. In situations where somebody is before a court, where the normal practice would be to sentence somebody to imprisonment there is an alternative there, with the consent of the offender, to go on community service order. Quite obviously, it has other advantages. It would be a misunderstanding of my position to say that this is the only reason why the Bill was introduced. There are far wider considerations in community service orders than relieving pressure on prison space. It is a consideration. Deputy Woods raised the matter of consent. I do not believe that a community service order would operate without the consent of the offender.

I did not suggest that. I agree entirely with what the Minister has just said.

(Limerick East): The question of consent is important in that sense. For those reasons I am opposed to that amendment.

In replying to my amendment looking for lowering of the age, the Minister referred to the possibility that as a result of lowering the age this could bring us in conflict with the spirit of the Protection of Young Persons Act. I already made the point that the 1977 Act places the eligibility for work at 15 years of age. In effect, our amendment would not be in conflict with that. I whole-heartedly agree that many young people are working at 15 years and even younger in breach of the law. These people should not be working and should be on some educational or training courses.

The other point I would like to make is that our party have a further amendment down seeking to offer a choice to the courts either to require those people to do community service or to require them to involve themselves in an educational course or a training course under AnCO. The two amendments are linked in that way. I am surprised at the Minister's admission that one of the purposes of this Bill is to relieve the prison system. I understood it would certainly have that effect but I was not aware that this was one of the purposes of the Bill. I am a bit unhappy that that is a purpose rather than an effect. I assume that we are trying to find a more humane and progressive way of dealing with offenders rather than simply trying to relieve the State of the need to keep people locked up.

The Minister raised the question of fines and he said that in the United Kingdom there was originally an allowance for such orders instead of fines. That is not suggested in the amendment. It is stated in the amendment:

in respect of which the court would be entitled to impose a sentence of penal servitude, of imprisonment, or of detention in St. Patrick's Institution...

It is quite clearly specified that we are talking about cases where the court would be entitled to apply such sentences. Apparently the situation is that quite often the court is left in the position that it has to apply custody, on the one hand or, on the other hand, to go to the other extreme and just apply the Probation Act, a fine or something else. Therefore, in a case in which the justice would be entitled to impose a sentence, he would not then have the flexibility instead to make a community service order. I appreciate the point the Minister makes in relation to not creating too many of these community service orders, but surely this is something that could be regulated. There is another section dealing with that: that the court must satisfy itself that the wherewithal is available for such orders to be made.

The Minister has said that one of the objects would be to relieve pressure on the prisons. We should examine the object of introducing a measure which will be there as a workable and useful one for the courts, for the administration of justice, and not be unduly concerned with relieving pressure on the prisons. We must find the appropriate sentence or punishment for whatever may be the crime. That should be our first objective. In any event I think there is a section which would cover the Minister in regard to a flood of community service orders before he was ready to take them. Therefore it would be important that there be this group in between. Certainly my intention was not to replace fines with community service orders. As is clearly stated in the amendment, the court would be entitled to impose a sentence of penal servitude, of imprisonment, of detention in St. Patrick's Institution but, the court would have the option of introducing a community service order. That is the basic point. There is an element in between the case of just having a fine, on the one hand, and imposing a sentence on the other. It is in that area I wanted to provide the flexibility for the court, that where they would be entitled to impose a sentence they could instead apply a community service order.

(Limerick East): Deputy De Rossa was quite right in pointing out that there is not a conflict between the letter of existing legislation designed to protect young people in employment but I suggest there is a conflict with its spirit. If one allows a court to impose what are, in effect, sentences to work at 15 years of age then the attitude to young people working could change in the community.

One of the objectives of the community service orders is to divert people away from the prisons and from St. Patrick's Institution. 15-year-olds, under sections 102 and 103 of the Children Act, 1908, may be committed to prison for short periods but only if they have been certified by the court as being so unruly or depraved that they cannot be kept in special schools. Such committals account for approximately 1 per cent of prison committals. Most 15-year-olds are committed to special schools where the emphasis is on education and it would be proper that that practice would continue. The Deputy made the point that he has another amendment down and I should deal with the points he raised on it when we come to dealing with it.

The purpose of the Bill is to introduce another set of sanctions which in certain particular cases would be more effective, appropriate and humane to the offender involved. Obviously there are cases where a community service order could be worked at weekends or during holidays. Consequently this would be of benefit to somebody who would be in fulltime education. The 16- or 17-year-old in school, who is in court and in respect of whom a prison sentence might or could be appropriate, would in a sense be doubly punished in situations in which he would be deprived of his education as well. Community service work can fit in very well with somebody in fulltime training or education. I do not see any conflict between the obvious desire which I and many others have to reduce the pressure on places in the prison with the main principle of the Bill which, as the Deputy so rightly pointed out, is to introduce another set of sanctions which may be more appropriate and humane in certain circumstances.

I have drawn attention previously to the serious situation obtaining in our prisons where last year 1,200 offenders were shed from the system. It is quite clear also that some people are committed to prisons now where, for example, a community service order would constitute a far more appropriate sanction. Whether one contends that this constitutes one of the major beneficial side effects of the Bill or that it constitutes the purpose of the Bill is really to engage in semantics because the two are interlinked. If a community service order is more appropriate and humane and also has the consequence of not committing a young person, for example, to St. Patrick's Institution, certainly it will also have the effect of exerting less pressure on prison places and creating the availability of prison spaces for more serous offenders.

Deputy Woods thought I may have misunderstood the purpose of his amendment. The point I am making is that the mere fact that the offence could in law be punished with a custodial sentence, however trivial the offence was, would enable the court to make a community service order if the Deputy's amendment was adopted. Quite frequently now a court will deal with a matter which could be punished with a custodial sentence by fining persons, putting them on probation, or by a suspended sentence. If the Deputy's amendment was adopted it is not that a judge would in every case decide that he was making a community service order instead of a fine. Part of the purpose of the Bill is to give another sanction which is an alternative to imprisonment and not an alternative to fines, putting somebody on probation, or giving somebody a suspended sentence. There are alternatives available to the courts already. The suggestion is that this would constitute another alternative that would be available. It would be much more beneficial both to offenders and to our system of justice, and indeed to the prisons, as I have said already, if it were operated as drafted in the Bill, where a community service order would be an alternative in a situation in which a judge had decided that an appropriate sanction would be a prison sentence. Otherwise there is the difficulty that community service orders may be used in situations in which now somebody would be fined, put on probation or given a suspended sentence, and that is not the purpose of the Bill. Its purpose is that it would be an alternative to a prison sentence.

I appreciate the Minister's point that it would act as an alternative to a prison sentence. As I understand it, the courts often find themselves in a situation in which they would have this option of a prison sentence. Probation would be too light a sentence, a fine, in the particular circumstances, might be too much, bearing in mind the person's financial circumstances, and, as an alternative to imprisonment, a community service order would be more appropriate in some of theses cases. That is the kind of case I am trying to get at.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.