Is the amendment being pressed?
Criminal Justice (Community Service) Bill, 1983: Committee Stage (Resumed) and Final Stages.
Debate resumed on 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 of 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."
—(Deputy De Rossa.)
No.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
I move amendment No. 2:
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".
We were discussing the contents of this amendment before the break. The Minister has told us that the purpose of the Bill is to provide community service orders in serious cases. The courts should have the flexibility to make such orders in cases where they would be entitled to impose sentences.
The Minister said he was anxious that community service orders would not replace a fine or an order putting an offender on probation. I was anxious to make the point that in certain instances probation is too light a penalty — we have had instances of that in recent times — and a fine may not be appropriate when the financial circumstances of the defendant are taken into consideration. In such a case a court should have the option of making use of a community service order. I appreciate the Minister's point, that he does not wish to replace fines or probations with community service orders but there are many cases where a court has to pass a sentence which it does not want to impose, or release a defendant on probation. The courts would welcome being able to apply a community service order in such cases. My amendment sought to meet that situation.
The Minister is concerned that there may be too many community service orders and he stressed on a number of occasions that he wants such orders for the more serious offences. As far as the more serious offences are concerned custodial sentences should apply but orders should apply to offences that are not so serious. The courts should have flexibility for the area in between and the Minister can rely on them to use their discretion. The Minister has the safeguard in that no order can be made unless it is clear and it can be carried out. The amendment covers a substantial area and because of that it would be a valuable addition to the Bill.
Limerick East): I have substantially dealt with the point, that where a law provides for a prison sentence it usually provides for an alternative to that sentence, a fine. The intention in the community service order is that it would be imposed as a sanction, as an alternative to a prison sentence. The risk I can see in accepting the amendment is that it would be used as an alternative to fines, or probation orders. As a result it would not fulfil one of the needs for which the Bill will cater. I should like to draw the Deputy's attention to Community Service Orders by Warren Young, in which he stated:
If, for example, the community service order is used often as an alternative penalty to a fine, or as a rehabilitative measure in lieu of a probation order, but at the same time a custodial sentence is regularly being imposed for breach, the result could easily be an increase rather than a reduction in the population of penal establishments. There is, indeed, some suspicion that that is precisely what occurred following the introduction of the suspended sentence in 1967 (Sparks, 1971; Radzinowicz, 1971). Ambivalent policies can produce consequences which satisfy no one.
It is because of the logic of that argument that I oppose the amendment.
I place my trust and confidence in the courts in the operating of such orders. I accept the point the Minister has made about the risk of them becoming alternatives to fines. I am aware of the dilemma the Minister faces in practical terms in relation to this. I would rather have orders available for cases where a court may not have any alternative but to opt for probation or a sentence although the court would prefer to have an intermediate step. A considerable amount of sentencing occurs in that intermediate area. I appreciate the Minister's concern and, having made the point clearly, I will leave the matter at that.
(Limerick East): If a judge finds himself in a situation where it would be a fine on the one hand or a prison sentence on the other and if he thinks a prison sentence is an appropriate sentence in the case then he can use a community service order instead of a prison sentence. What is in the Bill substantially meets the point the Deputy has raised.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.
I move amendment No. 3.
In page 3, to delete lines 1 to 4, and substitute the following subsection:—
"(2) A community service order shall require the offender to:
(a) perform in accordance with this Act unpaid work for such hours as specified in the order and are not less than 40 and not more than 240;
or
(b) attend at an educational course approved by the Minister for Education, or a training course approved by the Minister for Labour, for such time and under such conditions as the court may decide."
The amendment seeks to expand the idea of a community service order by adding a subsection to the effect that a community service order shall require an offender to perform unpaid work for a specified number of hours or attend an educational course approved by the Minister for Education or a training course approved by the Minister for Labour for such time and under such conditions as a court may decide. I am moving the amendment in the knowledge that most of the offenders who appear before our courts are young people. In most cases they are under-educated, left school at an early age or, more often than not, are unemployed. We felt it would be an advantage to them and to society if the courts were in a position to recommend them to training or educational courses. It is not necessary that the courses should be full-time day courses because the VEC organise a wide range of courses that could be utilised. It would be better if such people attended courses run by the VEC or AnCO and obtain a skill rather than did what might turn out to be menial work under a community service order. We are anxious to broaden the scope of the order requiring people against whom a community service order is made to pursue an educational or training course where the courts consider such courses would be beneficial.
(Limerick East): I am opposed to the amendment which would enable the courts to order an offender to attend an educational or training course as an alternative to ordering the offender to do some unpaid work for the community. The amendment presumably envisaged that the offenders would have to consent to attending these courses. The offender is already required by section 4(1)(b) of the Bill to consent to the making of an order. If an offender genuinely wants to continue his education or undertake further education or training then he has nothing to fear from the Bill because it already provides in section 7(3) that directions given by a supervising officer in regard to community service order shall so far as practicable avoid any interference with the offender's attendance at school or other educational or training establishment. If the intention of the amendment is to enable the courts to compel the offender to attend such courses, I think as a matter of policy this would not be desirable. This is the view of many people whose function it is to provide such courses. They take the view that the element of compulsion destroys the necessary motivation which is essential for any success in the field of education.
As the law stands the courts may take into account the offender's educational or training requirements. If the offender wishes to pursue an educational or training course the courts may put him on probation. For this purpose a probation order is more appropriate than a community service order. The ethos of a probation order is to try to keep the offender out of trouble for the duration of the order. The role of the supervising officer, the probation officer, is to befriend the offender and to encourage him to do whatever is necessary for that purpose, at least for that period.
This Bill is designed to ensure that offenders who would otherwise be committed to prison carry out unpaid work on behalf of the community as a penalty — and I stress the fact that it is as a penalty. I do not think it would be appropriate or desirable to include in this Bill any sanctions which do not have this effect.
The point I am making is that it would not be desirable to force people to attend training or educational courses because they would lack motivation to benefit from them. On the other hand, if their consent is given a judge can implement a probation order and under the Probation and Welfare Service a young offender can attend the type of course the Deputy has in mind.
I am not accepting the amendment.
I take the Minister's point to a degree. However, the element of compulsion does not come into it. The Bill makes it necessary for the offender to consent to the community service order in the first place. It is not likely that anyone who has an order made requiring him to do work will do work which he is unwilling to do. He may be as unwilling to dig a hole in the ground as to attend an educational or training course. It would be more beneficial for society and a young person — most people who come before the courts are young people — if he had acquired a skill rather than simply to have paid a debt to society.
The Minister mentioned probation orders. If the judge makes a probation order and the probation officer indicates that it would be of value for the person to attend an educational or training course, is the offender required to do so? Does he have free choice?
(Limerick East): It is at the discretion of the judge in each case.
Is the Deputy pressing the amendment?
No, in view of the Minister's remarks. I still think the Bill would be better if training courses were allowed, but obviously the Minister is not willing to accept this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 3, between lines 13 and 14, to insert the following subsection:——
"(4) Nothing in this section shall be construed as preventing a court which makes a community service order from making, in relation to the offence in respect of which the order is made, an order——
(a) imposing a suspended sentence conditional on the offender's good behaviour for a specified period of time,
(b) binding the offender to the peace.".
My intention was to make it possible to have a community service order in addition to being bound to the peace for a specified period of time or to have a community service order in addition to a suspended sentence conditional on the offender's good behaviour for a specified period of time. This could give flexibility to the courts.
(Limerick East): In my opinion there would be no advantage and there could be considerable disadvantages in fixing up sentences in the way the amendment proposes. Under the Bill as it stands the court makes a community service order on the basis that this is in all the circumstances a suitable alternative to a custodial sentence. The offender then has a clear and definite prospect before him: either he performs the work, in which case that will be the end of the matter for him, or he does not, in which case he may be fined for the breach of the order or taken back to the court and punished for the original offence. This is explained to the offender who knows exactly what his position is, in particular he knows that if he complies with the order he will not be in danger of being sent to prison for the original offence.
This is the logical position given the principle that a community service order should be an alternative to imprisonment. If the court were to pass a suspended sentence of imprisonment as well as making a community service order in respect of the same offence and the offender were to fail to comply with the community service order, then since the breach of the order would itself be an offence the suspended sentence of imprisonment would presumably be activated. This would limit the discretion of the court before which the offender is brought for the breach of the order. That court should obviously consider that is the right course to take in the light of the situation at the time when the offender is before it for the breach. If, for example, he has worked satisfactorily for the greater part of the time, the court might well decide that a fine is a sufficient punishment for the breach. Even if the court decides he should be dealt with for the original offence, it may consider he should be sent to prison for a shorter term than that specified in the suspended sentence.
If the offender during the currency of the community service order commits a fresh offence other than a breach of the order, he can in any event be prosecuted for that offence and no doubt the court in considering sentence will take into account the fact that he was treated leniently for the early offence by having the community service order made against him instead of being imprisoned, and yet he failed to benefit from that leniency. Similar arguments apply to the proposal to enable the court to combine an order binding the offender over to keep the peace with the community service order except that in this case no period of imprisonment in default of compliance with the binding over order will have been specified in the original sentence.
I am not accepting the amendment.
The community service order might last only a limited number of hours which are specified — from between 40 and 240. A person could be bound to the peace in addition for a period of two years or whatever. Does the Minister not recognise that this could provide a degree of flexibility which the courts could find useful in certain circumstances?
(Limerick East): I do not see any particular merit in it. A community service order is a sanction which will normally be applied instead of a prison sentence. If a community service order was not applied the convicted person would be sent to prison. There is an element of seeking to punish somebody twice for the same offence in the Deputy's suggestion.
The Minister has to accept that a community service order is a lesser sanction than being sent to prison, or that in many instances it would be. The Minister is talking about this new measure as a replacement for a prison sentence. The community service order has to stand on its own. The Minister is saying that, in addition to a community service order, the courts cannot bind a person to the peace. Since the Minister accepted that the courts may have the option of applying a community service order instead of a prison sentence, why should the courts not have the option of binding a person to the peace in addition to applying a community service order since the alternative measure will be there when the Bill is enacted?
(Limerick East): I do not accept that a community service order is necessarily a more lenient sentence than a prison sentence. The point I have been making is that it might be a more appropriate sentence in a given case. A maximum of 240 hours work may be prescribed for somebody who is a full-time student or working full time. This could involve somebody working eight hours every Saturday for 30 consecutive Saturdays. That could be much more severe than a month's imprisonment. It could be equated with a prison sentence.
I do not accept the argument that a community service order is a softer or more lenient approach in a scale of penalties. The argument I am putting forward is that it is an alternative sanction which will be available and, in the cases where it will be applied, it will be a more appropriate sanction in the circumstances, but not necessarily a more lenient one. I come back to the point I have made already. Since it is an alternative to a prison sentence I do not accept that something should be added on, like binding somebody to the peace. That would imply an element of seeking to have two sanctions for the same offence when in effect, the community service order is conceived in the first instance as an alternative to a prison sentence.
I have to be very careful about the use of words because as soon as I mention a word like "lenient" the Minister is likely to jump in, take up the word, and say that it is not lenient. Being deprived of your freedom is the first element so far as prison sentencing is concerned. Not being put behind bars for most people would be a lesser form of punishment. The order has to be related to particular kinds of sentences, and the courts will have to decide that, as appropriate. The community at large would be happier if they knew that under this new measure a person who has offended against the community could be bound to the peace for two years, say, as well as having a community service order applied to him.
I find it very hard to understand why the Minister cannot see this point. The amendment is intended to introduce some flexibility. It seems to me to be a valuable addition to the Bill. I proposed the amendment in a helpful spirit. My predecessor on this side of the House dealt with this Bill and the Minister's side of the House was involved with it as well. We are in general agreement on the Bill and its suitability. This seemed to me to be a helpful suggestion on Committee Stage. I am somewhat disappointed that the Minister is taking such a hard line on proposals made in a helpful spirit. I believe the courts would be glad to avail of the option of binding a person to the peace in addition to applying a community service order. If the Minister insists on not accepting any amendments, I will not press this any further. There is no point in it.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 to 10, inclusive, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
Can the Minister say what discussions have taken place between the officers of his Department and the probation officers around the country to ensure that community service work will be available and to draw up regulations which will govern the application of community service work? When the Bill has been in operation for eight months or 12 months will the Minister review the working of these orders?
(Limerick East): The probation and welfare section of my Department will be implementing the community service orders scheme. They work directly under the Department of Justice. The preliminary discussions necessary for agreement have taken place and there is a willingness to operate the scheme.
Section 14 provides:
(1) The Minister may make regulations for the purpose of giving effect to this Act.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) provide for regulating the performance of work under community service orders,
(b) limit the number of hours of work to be done under such an order on any one day,
(c) make provision regarding the reckoning of time worked under such orders,
(d) make provision for the payment of travelling and other expenses in connection with the performance of work under such orders, and
(e) provide for records to be kept of the work done under such orders.
Section 14 enables the Minister to regulate the performance of community service orders. The regulations will be drafted as soon as the Bill is passed. Between now and the coming into operation of the Bill, discussions will be conducted by the probation services and interested bodies. A chief probation officer has been involved in this all along. I am also considering the setting up of a small committee to monitor the work of the community service orders. Any new scheme has teething problems. There is a necessity to implement this scheme throughout the country at the same time so that similar sanctions will be available for all citizens in all areas. There would be a difficulty if it were implemented on a pilot scheme basis. The regulations will be drafted when the Bill is passed. I am considering setting up a committee to take into account the points raised by Deputy Cosgrave, and similar points. Obviously we will learn by experience.
A White Paper was published on this. It outlined some of the different tasks that could be done under a community service order. There were responses to the White Paper. In August 1981 the Probation and Welfare Officers Branch of the UPTCS replied. Various other people replied and made submissions on the White Paper. While I take the general point made by the Deputy and I am aware of what he has in mind, I believe a combination of the drafting of the regulations and the consideration I am giving to a small committee to monitor the situation will meet the point.
Question put and agreed to.
Sections 12 and 13 agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
The Minister indicated that he plans to draw up the regulations immediately. I presume this means within the next couple of weeks. Did I understand the Minister correctly?
(Limerick East): As soon as the Bill is passed.
In effect, it means within a couple of weeks of the Bill being passed. What proposals has the Minister for the provision of staff and what finance will be provided?
(Limerick East): I have made proposals to the Department of the Public Service and there will be discussions on an increase in staff which will be required in the Probation and Welfare Service in order to implement community service orders. As the Deputy is aware, when we came into office there was not an allocation in the Estimate for community service orders. If I am to implement community service orders later this year, when the regulations are drafted and when the organisational work is done which will enable me to implement community service orders, this will have to be financed out of savings under some other head in my Department. The kind of money which I consider might be necessary to implement this later in the year might be between £80,000 and £100,000. I am not sure at the moment, with the progress of the Bill through the Dáil and later through the Seanad, the discussions which will have to take place and the drawing up of the regulations, at what exact point in the year I will be able to implement it even if there was money in the Estimate. Money will certainly be provided in next year's Estimate for its implementation.
Now that we are coming into mid-summer, with the Bill having to go through the Seanad, the organisational structure, which is a probation and welfare service around the country, has to be supplemented. Particular types of work and particular tasks in different areas have to be identified. Consultations will have to take place locally with local voluntary groups. That kind of preparatory work can proceed. I know the Deputy understands the problem. There will not be any reluctance to implement the Bill once it is passed, and money will be provided for it.
Question put and agreed to.
Sections 15 and 16 agreed to.
Title agreed to.
Bill reported without amendment.
Question proposed: "That the Bill do now pass."
We have pleasure in supporting this Bill and we wish the Minister every success in implementing it. It is a new measure which is long overdue. It will give greater flexibility to the courts in the administration of justice but it would be a mistake to regard it as a solution for the problem of prison space. We believe this problem will have to be tackled separately. Since the Minister has spoken a lot about the possibility of using this instead of prison sentences would he review the situation in relation to holidays for offenders and make sure there are suitable criteria adopted in such cases? We have recently seen some examples which would lead one to be a bit concerned about that.
We regard this Bill as an overall programme for a general crackdown on crime. We welcome it in that respect. We also look forward to the Minister taking further action in relation to the police on the ground, community policing, the new legislative powers which are needed and the provision of adequate prison space which we believe will be necessary. Notwithstanding the fact that this Bill will obviously relieve some prison space, there will still be a need for further prison space to be made available. I hope the Minister will press the Government to allow him to proceed on those lines. We welcome the Bill as a very useful measure.
Limerick East): I would like to thank Deputy Woods and the other Deputies who contributed today as well as on the Second Stage. This Bill is one which many Administrations and a number of Ministers have had a hand in. I am pleased to be able to bring it into the House with the co-operation of all sides of the House. It is not to be seen as a solution to the problem of lack of prison space. The reopening of Loughan House and the opening of a new wing in Cork prison have provided extra prison space, as the Deputy is aware. A combination of those two events and the implementation of community service orders will certainly improve the situation in a major way.
I take the point the Deputy made about holidays for offenders. The main problem is the actual shedding from the system. The idea of a person being sent home from an open institution for 10 days or a fortnight and then having to come back and complete his or her sentence has been working reasonably well because the sanction of returning to the system is there. The problem has arisen where people are completely shed from the system due to lack of prison space. If the Deputy has any particular case in mind where the holiday scheme has broken down or has given rise to concern I will check the particular case. I accept, in the overall package in the fight against crime, that this is one portion of it. It is a significant portion and I do not think it is to be under-estimated. It is something new which has worked well in other countries. It is an alternative sanction to the courts and I believe it will help by providing a more appropriate sanction, a more humane sanction in many cases, and a more beneficial sanction for the offender and the community. It will also help in connection with the pressure on prison space.
I take the point made by the Deputy that it is part of an overall programme of policing, greater contact between the police and the community, higher visibility of police on the beat, and it is legislation which is necessary. Certainly there is need for a major Criminal Justice Bill which would give extra powers to the Garda and which would deal especially with the problems of offences committed while on bail.
Question put and agreed to.