I move: "That the Bill be now read a Second Time."
With your permission, Sir, I wish to share my time with Deputy Fennell.
Vol. 398 No. 4
I move: "That the Bill be now read a Second Time."
With your permission, Sir, I wish to share my time with Deputy Fennell.
Is that agreed? Agreed.
The purpose of the Fine Gael Criminal Justice Bill is to amend the law relating to criminal proceedings so as to provide for the review of sentences that are considered to be too lenient. From time to time controversy erupts in relation to sentences imposed by the courts on convicted criminals. In all cases a convicted person has the right to appeal against the actual conviction or against the severity of the penalty imposed. Controversy usually focuses on situations where it is perceived that the sentence imposed was too lenient. At present the State does not have the power to seek a review of any such sentence. The Whitaker report states that serious crimes, and it specifically mentioned murder and rape:
will always, be reason of their innate seriousness, either by statutory mandate or by the exercise of judicial discretion require the imposition of the penalty of imprisonment.
I specifically quote that report because it is better known for its proposals in relation to alternatives to custody, indeed for improving the situation in our prisons. Even though that was the central thrust of the report it specifically indicated that certain offences, because of their innate seriousness, required the imposition of the penalty of imprisonment. Yet there have been instances when people convicted of such crimes have not been so sentenced.
Under Article 35 of the Constitution all judges are independent in the exercise of their judicial functions and subject only to the Constitution and the law. Let me be very specific; I believe the independence of the Judiciary has been the solid base on which our democratic system has been built and should not be interfered with. On the other hand, judges, being human, are not infallible and for that reason their decisions should be subject to review. There is, therefore, a case for giving the State the power to seek a review of a sentence where it appears to the Director of Public Prosecutions that the sentencing of a person in a proceeding in Criminal Court has been unduly lenient. Such a procedure, as I understand it, is a feature of the criminal justice systems in other countries.
Recently an extensive survey on crime was carried out in the Clontarf Garda district. Included in the survey was the question whether the residents in the area felt that such a power should be given to the Director of Public Prosecutions. It is interesting that in response to that question in the survey there was overwhelming support, 92 per cent, for the Fine Gael proposal to allow the Director of Public Prosecutions to challenge a sentence, if in his opinion it was too lenient.
The purpose of the Criminal Justice Bill, 1990, is to give such a power to the Director of Public Prosecutions. I should mention in passing that such a power exists in the United Kingdom; it was introduced some years ago and was given to the Attorney General. On reflection I think that, since the Director of Public Prosecutions is the normal person involved in prosecuting cases, he would be in a better position to judge whether, in fact, an application should be made. He would be aware of the full facts of the case and have full reports from his legal teams. For that reason I felt it was not wise to follow the British precedent of giving this power to the Attorney General, and came to the view that it should be given to the Director of Public Prosecutions.
In any criminal case which has been decided by the Central Criminal Court, the Special Criminal Court or the Circuit Criminal Court, the DPP will under this Bill, be empowered, where he considers the sentence to have unduly lenient, to refer the case to the Court of Criminal Appeal to seek a review of the sentence. Again I must mention that I have concentrated on the higher courts. I did not include the decisions of the District Court — indeed there are an enormous number of such decisions in the District Court. Generally, serious charges are not normally brought in the District Court. There is a limit on the maximum term of imprisonment and generally the District Court is a court of summary jurisdiction. The thrust of my Bill is in relation to serious rather than minor crime or particular cases of summary jurisdiction. I decided not to include the District Court in the Bill which I drafted. If other Members of the House have alternative views, I am prepared to listen to them, but, having considered the matter, I believe that this is probably the better approach.
If the Director of Public Prosecutions comes to the view that the case should be referred to the Court of Criminal Appeal, that court will then have the power to quash any sentence passed and in place of it to pass such sentence as the Court of Criminal Appeal considers appropriate for the case. Of course, the Court of Criminal Appeal could not pass any sentence which was beyond the sentencing court's power to pass; obviously it could go beyond any statutory maximum.
From the point of view of justice being done and being seen to be done, it would be entirely inappropriate for a trial judge to sit in the Court of Criminal Appeal on such an application, and the Bill provides that no judge shall sit as a member of the Court of Criminal Appeal dealing with a reference, under the Act, of a sentence passed by him. The Bill also provides for reference to the Supreme Court but, of course, only on a point of law involving public importance. That is the normal procedure, in that the Supreme Court has a special remit in that regard in dealing with points of law of public importance. If there is such a reference, the Supreme Court will be empowered to give their decision on the point of law and at that stage they can either remit the case to the Court of Criminal Appeal for final decision or alternatively the Supreme Court itself will be empowered to deal with the case under the terms of the Bill.
The background to this proposal is the need for broad consistency in sentencing policy. The Criminal Justice Bill which I now present to the House will help to achieve that objective, particularly if the Minister takes on board another proposal of mine which is not a legislative one but more an administrative one. The objective of consistency in sentencing policy will be helped if we pass this Bill into law but in addition the presidents of the different courts should have regular conferences of judges to discuss their respective experiences. It is a very unwise saving on the part of the Minister for Justice and his Department to refuse to approve travelling expenses to judges who wish to attend such meetings. Essentially I am suggesting a two-pronged approach: firstly, the legislative one which would involve the review by the Court of Criminal Appeal where the Director of Public Prosecutions feels the original sentence was unduly lenient and, secondly, the adminstrative approach, that the presidents of the respective courts, the High Court, the Circuit Court and indeed the District Court, would be encouraged to have these regular conferences. My understanding from the Judiciary is that they would be very keen to hold conferences, and also that where proposals have been made in the past it has been made clear that they could not go ahead for one simple reason, the travelling expenses of the judges would not be paid to attend such conferences. That seems to be a crazy policy.
On the question of the conferences of judges, it is relevant to refer to that portion of the Whitaker report which deals with court sentencing practice. It is worth taking note of the views of Mr. Ken Whitaker and his colleagues on this point. It states:
Maximum custodial penalties are usually fixed by statute. In deciding a sentence in a particular case, the court takes into account factors such as the gravity of the offence, features which aggravate or mitigate the seriousness of the offence, the level of sentences common in similar cases, the need to maintain a balance with sentences for other kinds of offences and the circumstances of the accused. An appeal against the severity of sentence lies to a higher court. This helps to ensure consistency in sentencing practice. We believe that consistency in sentencing would be helped further by regular judicial conferences on sentencing practice, the setting of guidelines by the judges themselves and by the judges introducing training in sentencing standards and techniques.
I present that view by way of support for the second part of my proposal which is that, apart from accepting this Bill, the Minister should ensure that those regular conferences of judges to which I have referred take place.
On the question of consistency of sentencing, consideration has to be given to the position of the victims of crime. To a large extent the victims of crime have been, if not ignored, at least insufficiently considered in relation to judicial procedures in the past. I noted that at their annual conference the Irish Association for Victim Support highlighted the concern that some victims of crime had expressed in relation to what they termed derisory sentences. Obviously that would be a subjective opinion but it is fair to say that in some instances at least the view in relation to derisory sentences is shared on an objective basis by members of the general public. It is appropriate at this stage for us to consider what are the views of victims in relation to the sentences imposed for serious crime; indeed what are the views of victims in relation to the whole criminal procedure as far as they are concerned.
The Director of Public Prosecutions, in his major speech to the Incorporated Law Society in Killarney, expressed his concern for the victims of crime and indicated the possible need for changes in procedures from the point of view of notifying the victims in relation to any pre-bargining process and of advising them as to how proceedings in which they were involved were going. I do not intend to go into the issue in any great detail at this stage other than to agree with the view to a large degree we will have to consider ways in which we can bring the victims to the centre rather than leaving them on the periphery of the judicial process. There will have to be far greater consideration for them. I think many victims of crime would feel greater consolation and comfort, in so far as it can be made available to them, in the knowledge that the Director of Public Prosecutions would have the power which I am proposing in this Bill.
Another view expressed very forcibly by the Director of Public Prosecutions in the major speech he made in Killarney was the need to codify and update the law. I am all in favour of the codification of the criminal law. This legislation proposal I am making is not in any way counter to that view. Obviously codifying the criminal law will take some time. In the meantime we should make efforts in the different areas to also update the law. While I strongly urge the view that a criminal law reform commission should be established with a particular role in relation to the codification of the law, at the same time we should be dealing with loopholes and lacunae in the law as they present themselves, and, in particular, proposing solutions where possible. I mention that in the context of making it clear that this proposal does not in any way substitute for any effort to codify the criminal code in general.
When considering this proposal we have to look at what has been happening in relation to crime in general in recent years. At present about 90,000 indictable crimes are recorded every year. These figures can be to some extent misleading. I think there is a general perception that a substantial amount of indictable crime is not reported at all. It is interesting to refer to the recent Clontarf survey which demonstrated that over 20 per cent of the crimes which occurred in that area in the previous 12 months were not reported to the Garda. I accept that is just one survey but it is there by way of confirmation of the general perception that we all have about the non-reporting of crime. I mention that from the point of view of the enormous increase in crime that has taken place. I am not pointing the finger at the Minister because it has not just taken place in the last number of years; I am thinking of a much longer time span. If there is about 90,000 recorded crimes and about 20 per cent is not reported, there are well over 100,000 cases of indictable crime being committed each year. The detection rate, at about one-third of recorded crime, suggests that there are about 60,000 indictable crimes undetected plus about 20,000 unreported. These are horrific figures and indicate a major change in society over the years. In the forties the number of recorded crimes was slightly less than 15,000. That figure increased to 26,000 by the end of the sixties and yet now we are talking about a figure of 90,000 recorded and perhaps over 100,000 unreported crimes. That is an increase of at least six-fold, not seven-fold.
From the point of view of committing crime it is clear that various new approaches must be adopted. Part and parcel of that approach must be reform of the criminal code and its updating. The proposal I am putting before the House fits into that category.
I would like to say one other thing which I consider to be important in relation to this legislation. I do not see this proposal as being in any way consistent with my support for the various recommendations in the Whitaker report from the point of view of alternatives to custody. The measure I am proposing is to deal with sentencing policy in relation to serious crime. I support the various proposals to provide alternatives to custody in particular, for minor offenders. I have outlined before how this can be done. I am talking about the payment of fines by instalment rather than by having people committed to jail because they cannot find the money to pay the fines imposed on them. We are talking about attachment of income, confiscation of property, greater use of community service orders, restitution to the victim of the crime and general powers to the courts to require attendance at treatment centres, residence in approved hostels, participation in training programmes and restriction of offenders at specified times to their places of residence. There is no conflict whatever with the proposal to establish those alternatives to custody and at the same time to provide the Director of Public Prosecutions with the power to appeal a sentence after a criminal has been convicted by the court where the Director of Public Prosecutions considers such a sentence to be too lenient.
I want to give my colleague, Deputy Fennell, an opportunity to comment on the Bill so I will conclude my initial presentation by indicating that we all have to accept that there has been a huge escalation in serious crime in Ireland in the past 20 or 30 years. As legislators we have a responsibility to put forward proposals as to how that serious problem should be tackled. I accept that the response to the huge increase in crime is multifaceted. There are many areas that need to be looked at from the point of view of the Garda Síochána, the prison system, the victims of crime and the codification of the criminal law.
The enormity of the job should not deter us from making specific proposals, such as the one I am putting before the House. This should be part — admittedly a relatively small part — of our response to that crime wave. It is clear from the public outrage that has been expressed from time to time in relation to a number of cases that there is need for this change in our law. I urge the Minister and my colleagues in the House from the other parties to support the proposal I am suggesting in the Bill, to give the Director of Public Prosecutions the right to appeal sentence, to the Court of Criminal Appeal in cases where he considers the penalty to be too lenient. I urge too, that my other proposal, which is non-legislative, be supported, that is, that conferences of judges can take place to improve the consistency of sentencing policy. Accordingly, I commend this Bill to the House.
I thank my colleague, Deputy O'Keeffe, for allowing me some time to comment on this Bill which is long overdue. I welcome the Bill and urge the Minister to seriously consider it and, if at all possible, to accept it because there is a lacuna in our law which the Bill, as presented would fill. I have no doubt but that this proposal would have public approval.
Traditionally in our courts it has been possible for a convicted person to appeal against conviction or against the severity of a penalty imposed. This is as it should be. I believe in the principle of appeal. It is something we would defend absolutely but it puts in stark contrast the position regarding the State. There is no possibility for the State to seek a review of any sentence where it is perceived to be too lenient. I am sure other speakers will deal with specific incidences but I will mention a couple of cases that have come to public attention. Indeed, there have been cases in the jurisdiction of our nearest neighbours, mostly cases of violence, specifically in areas of rape and sexual violence against women, in which very inadequate sentences have been handed down. It has been impossible and very frustrating to try to respond to inadequate sentencing in Ireland because decisions are absolute. There was the specific case of a member of the Defence Forces who admitted raping a young girl. He got a ludicrous sentence. There was justified outrage as a result and I had strong words to say at the time. The courts are the arena in which serious issues such as this are decided. I have the utmost confidence in our Judiciary and it gives me no pleasure at any time to be critical of the actions of our judges but there is inconsistency in regard to penalties. Admittedly, we are far from hearing the kind of remark in our courts that was made recently in an English court in which a judge said that in his opinion when a woman said "no" she very often meant "yes". A journalist telephoned me to ask what I thought of that remark. At first I would not believe it could have been made by a judge. It was incredible.
On the one hand we are dealing with a group of people who, perhaps, are a little out of touch and who have carried into their profession some of their prejudices or old fashioned notions. Even if we scream at people in that position on a regular basis and monitor how they measure up on chart of bias, as it were, there is nothing more we can do unless we accept this Bill. The Criminal Law (Rape) (Amendment) Bill, 1988 [Seanad] is going through this House. I spoke on that Bill when I was in the Seanad and at that time welcomed the proposal to bring cases from the Circuit Criminal Court to the Central Criminal Court. I believed this would make it possible for the State to appeal for a review of sentences. That belief was based on the contribution of a very learned Member of the Seanad at that time. I checked it out with a few people and nobody seemed very clear about it. Can the State not appeal a lenient sentence imposed in the Central Criminal Court? It seems that is so, and that is why we need this legislation. The need for it is self-evident. The need has been expressed and classified by so many groups over the years that we are fortunate to have a Bill now on the table and all we have to do is debate it and make any proposals or amendments needed, but the Minister should allow it to go through.
Public outrage develops when the public perceive a sentence coming from the court on a serious charge as being too lenient, and we see a second trial by media. The trial has gone ahead, the decision has been taken, and then because there is public outrage, the media and the commentators have their say. This is not right. It is understandable that people are angry and feel helpless and frustrated and tend not to see the courts serving their needs adequately. This is bad for our ego and for our judicial system. It brings the law into disrepute and to hold our judges up to ridicule cannot be good. They have a very prestigious place, deservedly held under the Constitution and we should defend and protect that right. Therefore, the principle of appeal must be extended and made possible in the instances I have mentioned.
I am particularly sensitive about this area. I have spoken to a number of rape victims. One case is stamped on my mind. A young married woman who lived in Tallaght was the subject of extreme violence, probably eight or nine years ago. She met me and talked with me. When she was married for about a year, a man broke into the house, chained her husband in the bathroom next door to the bedroom, held her in the bedroom for about six hours and raped her continuously. That man got out on bail and subsequently received a very lenient sentence. That is a classic case. I saw the woman's anger and fear and I realised that she will never recover from what happened to her. I suppose her situation would not be made easier but she would probably be able to accept it if she saw the person who committed that crime, heinous in anybody's book, punished adequately or if the court had not imposed a satisfactory sentence, there could have been an appeal and the State, the DPP, had authority to go back to seek a review of sentence. I say this meaning that the full facts, all the details, would be re-examined. I am not suggesting that in every case I want very punitive sentences imposed by virtue of the fact that there was an appeal. I would accept that in a review all the facts would be taken into account and a new decision could be taken based on those facts, but we will not feel that justice is adequately being done if that facility is not there. If the case goes to appeal and the sentence is upheld on appeal, people will feel that justice has been done and the full process of the law has been observed.
I ask the Minister to accept this Bill which is badly needed, is timely and will serve a very real need in society today.
Sir, with your permission and that of the House, I would like to share my time with Deputy Willie O'Dea.
Is that satisfactory? It is agreed.
Firstly, I would like to commend Deputy O'Keeffe on the work he has put into preparing this Bill. I appreciate the arguments he has made for it which I know are motivated by a concern to improve the administration of justice in our courts, but I am afraid, nevertheless, that I must oppose his Bill.
My opposition to it is not based on any rejection in principle of what it seeks to do. It may well be that a system of appeal against what are perceived to be over-leninent sentences along the lines of that in the Bill is a good idea. There is a problem and I accept that. Cases do arise from time to time where there is public dissatisfaction at a sentence imposed by the courts because it is felt to be too lenient. Often in such cases it may be simply that the public are unaware of all the facts and all the circumstances which led a judge to impose a particular sentence. Information may be available to a judge which is not available to the public, such as psychological reports and reports on the background and circumstances of the accused. These may have a significant bearing on the sentences imposed.
The vast majority of the decisions made in our courts are just and fair. It is only very infrequently that a case arises where there is a decision made which gives rise to widespread public disquiet and where, even allowing that a report of a case is no substitute for presence at the trial, it is difficult to contemplate any circumstances which could have led to that decision. We all recognise these cases when they arise. These occur perhaps at a rate of one or two over several years. I cannot say what percentage they would represent of all cases disposed of, but I am sure it is very small indeed. I think we should be clear in our minds that it is only these infrequent "problem" cases we must address. I certainly would not like to see prosecution appeals, if they are allowed, being taken as a matter of routine as it were. This would be uncalled for.
I do accept, as I said, that occasionally mistakes are made and sentences are imposed which simply do not fit the crime. These cases cause a great deal of public concern and can reflect badly on the courts themselves. I agree, therefore, with the Deputy that we must look at the system to see if we can devise some procedure, some method, by which these mistakes can be corrected or, better still, be avoided if possible. I know that this is what Deputy O'Keeffe is attempting to do in this Bill. As I said, I share his concern. What I disagree with is his approach in proposing this Bill at this stage. In explaining why I take this view I may seem unduly critical of the Deputy's initiative. I would like, therefore, to assure him and the House at the outset that to the extent that I am critical my only intention is to be constructive and to address the problem about which we both are concerned in the most appropriate way.
In an area like this where there are complex issues to be addressed legislation should, in my view, only follow detailed and expert examination. Basically, the Deputy's Bill is a copy of provisions in the English Criminal Justice Act, 1988. The fact that a procedure has been introduced in Britain does not mean that it can be uncritically transplanted to our jurisdiction. While I agree that our legal system has much in common with that in Britain, I need hardly remind Deputies that we do not always find the latter to be without flaw. I think we should examine the matter ourselves to ensure, as a minimum, that if we do import a procedure from another jurisdiction, it is the best available.
The problem to be addressed is not an easy one. Complex and fundamental issues going to the very heart of our legal traditions are involved. No doubt recognising these complexities, the Attorney General to the last Government in which Deputy O'Keeffe's party were a partner requested the Law Reform Commission to examine and report on the whole question of sentencing policy. Due to the heavy work programme in which the commission have been engaged, I understand that they have not as yet been able to undertake this examination. However, because of the obvious concern about this matter the Attorney General has, at my request, asked the commission to afford high priority to this examination and this they have agreed to do.
In an issue as complex and fundamental as this it is vital that we have the advice and recommendations of an expert body like the Law Reform Commission before we take any action. The processes employed by the commission are ideally suited to examination of such matters. They can research the area thoroughly and canvass views from a wide range of interested parties. They also have the facilities to establish how this problem, as I am sure that it is not one unique to us, is tackled in other jurisdictions.
They are also in a position to consider the problem in its widest context. There is more to be looked at in terms of sentencing policy than just the problem of over-lenient sentences. For example, uniformity is also an important issue to be addressed. It would, therefore, be percipitate and wrong in my view to proceed without awaiting the commission's recommendations.
I would suggest to Deputy O'Keeffe and to the House that there is nothing to be lost and much to be gained by being a little patient in this matter. The commission will, I have no doubt, proceed with their examination with expedition and provide us with, as is their practice, a detailed and well considered report which can then form the basis for appropriate action. This is by far the better way to proceed.
I referred to the procedure being proposed in the Bill as representing a fundamental change in criminal procedure. Without going into too much detail and while keeping an open mind on the issue I would like to illustrate what I mean.
Some might argue that the procedure proposed in the Bill would be an infringement of the rule against double jeopardy. This rule seeks to establish equity in the context of criminal proceedings between the State and the citizen. In a criminal prosecution an accused person faces the might and resources of the State and, in the interests of fairness, it is accepted that he should not be obliged to face such an ordeal again if the State fails to prove its case against him. It is well recognised internationally. It is enshrined in many international treaties dealing with such matters as extradition and mutual assistance in the criminal field. Strictly speaking, the concept of double jeopardy relates to the question of acquittal. Nonetheless it could be argued that a procedure which would permit a person convicted and sentenced to face the possibility of having his case further reviewed as to sentence should be at least looked at from the point of view of this concept.
This Bill raises the important question of whether conferring a right of appeal against what the prosecution might consider an over-lenient sentence would be consistent with the concept of fairness. If we accept that a person has been tried before a court and has been sentenced by a judge who is charged with that function under the Constitution, should that person have to suffer further uncertainty by allowing the prosecution to seek to have the sentence increased? Could we not be accused of permitting double punishment if we were to allow this to happen?
Take a concrete example. Suppose a person is convicted of an offence and receives a suspended sentence. Such a sentence would restore his liberty and he would be free to resume a normal life and to engage in employment and other activities. A subsequent prosecution appeal against sentence could result in all that being taken away again. Would this be fair? Should the prosecution be allowed to have a second bite at the cherry when the issue of the sentence had already been decided upon by a competent authority particularly when the consequences for the person involved could be so drastic? I offer no judgement. I simply say that we must think about this.
On the question of fairness there is a further point I must mention. This relates to the time for the bringing of prosecution appeals against sentences which, I note, is not addressed in the Bill. I believe that this cannot be neglected and I am sure that Deputies would agree that a very strict limitation period would have to be imposed for the taking of such appeals if we are to allow them. It would not, in my view, be acceptable that a person who has been dealt with by the courts should be put in the position of having a sword of Damocles in the form of a threat or the possibility of an appeal against sentence hanging over him for an indefinite period. It would be essential to prescribe a maximum period within which the prosecution would have to give notice that it proposed to lodge its appeal. This was done in the UK Criminal Justice Act.
A change of the nature proposed in the Bill might have some implications for the independence afforded to the Judiciary under our Constitution. It is accepted at present that the judge has complete discretion in dealing with the cases that come before him, including the question of sentence within the maximum penalty prescribed by law.
In deciding on a sentence in any given case judges may be expected to take account of a wide variety of factors before deciding on a sentence including the nature and circumstances of the offences, aggravating or mitigating factors, the circumstances of the accused such as age, character, previous convictions etc., the public good and so on. The proposals in the Deputy's Bill would add a new dimension to this which must, as a minimum, be looked at.
I should perhaps here remind Deputies that at present we rely on the judges themselves to take steps to avoid undue disparities in sentence. There is, in fact, statutory provision which allows the President of the District Court to convene meetings of justices to discuss issues such as disparities in sentencing. While there is no similar statutory provision for meetings of judges of the higher courts, there is nothing, of course, to prevent them having regular meetings for the same purpose.
A further difficulty which could arise from the procedure proposed in the Bill and which is not addressed therein relates to whether public comment should be permitted on a sentence where it may be appealed by the prosecution. For example, a prosecution appeal against sentence is most likely to be taken in the type of case which attracts a great deal of public attention — a number of them were touched on tonight — and where there may be a public outcry about the perceived leniency of a sentence including, perhaps, widespread media comment and criticism. I think the House will be able to recall examples of the type of case I have in mind.
What is to happen then if a person convicted and sentenced in such a case is to face review of his sentence? Is it fair that that review should be conducted against a background of adverse public comment and criticism? Would steps need to be taken to prevent public comment before an opportunity has been given for a prosecution appeal? These too are questions which must be addressed.
Another matter in the Bill which requires close consideration is the proposal that the Director of Public Prosecutions should have the power to take the appeal. If a procedure on the lines of that proposed in the Bill is to be put in place I can see the arguments why it should be the Director of Public Prosecutions. It could be argued that as the convicted person is entitled to appeal against what he or she considers to be a too severe sentence, the prosecution should have similar powers in the case of what it considers to be an unduly lenient sentence. However, I am not so sure that that is what we should have in mind. In particular, I would not foresee the power to appeal against what might appear to be an unduly lenient sentence as a power to be exercised frequently or as a matter of course. Indeed, I would not see it as a common occurrence at all. It seems to me that such a power if it were to be provided would generally be exercised only in those cases where there was well founded cause for disquiet in a particular case. In other words, the power would be exercised in the public interest in those cases which may have given, or could be foreseen as giving, rise to public concern.
In such a scenario I believe that the question of giving the power of referral to the Attorney General rather than to the Director of Public Prosecutions would need to be debated. It could be that the Director of Public Prosecutions, having prosecuted the case, could be seen as having too much of a vested interest in the situation where the question of the referral of a case might arise for consideration. I note in this connection that it is the Attorney General who has been given the power of referral in the United Kingdom. Again I mention this only as an issue for consideration. All the points I am making are for consideration.
A further point that arises from the fact that the Bill would confer the power to appeal against what was perceived to be an over-lenient sentence on the Director of Public Prosecutions is that such a move would represent a fundamental change in the role the prosecution has taken in matters relating to the sentence to be imposed on a convicted person. Up to now it has always been the position that the prosecution has not sought to influence court decisions on sentencing in any way but the effect of the Deputy's proposals would be that the Director of Public Prosecutions would become involved in that area. If that were to happen, then a question that would have to be asked is whether prosecutors should be at liberty, or even required, to make submissions on sentence to a trial judge. This is a very important point and one, I believe, that could only be properly dealt with after full and careful consideration of all the relevant issues.
Another matter that has to be considered in the context of the proposals in this Bill is the question of appeals to the Supreme Court against decisions of the High Court. Article 34.4.3º of the Constitution provides, inter alia, that the Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court.
In this connection, the view that decisions of the Central Criminal Court can by virtue of this provision in the Constitution be appealed by the prosecution to the Supreme Court is of relatively recent origin. While the Supreme Court has to date entertained appeals by the prosecution against certain acquittals in the Central Criminal Court, it has declined to order retrials in such cases. In regard to the question of an appeal by the prosecution against a sentence imposed by the Central Criminal Court the position is unclear. The Central Criminal Court at present generally only tries murder cases. In the case of a conviction of murder the sentence is a mandatory life imprisonment so the opportunity of appealing against sentence in murder cases would not have arisen to date. However, the question could arise in the case of a conviction for manslaughter or attempted murder and, of course, the matter will become much more relevant when rape and aggravated sexual assault cases are transferred to the Central Criminal Court as a result of the passing of the Criminal Law (Rape) (Amendment) Bill, 1988.
The implications of this situation require consideration and presumably it is a matter that the Law Reform Commission will advert to when considering this whole area.
One other matter which arises in the context of the Bill is the basis on which legal aid should be made available to persons who might be the subject of appeals against sentence. In the case of persons who have already received legal aid in the course of their trial, this should not give rise to difficulty as, presumably, it can be accepted that they should also have the same facilities for the appeal. Even so, this would require a change in the law as the type of case involved would not be covered by the provisions of the Criminal Justice (Legal Aid) Act, 1962. A more difficult issue, however, would be whether persons who had not been legally aided should have their costs on an appeal against sentence met by the State. In support of that proposition the case could be made that as the appeal proceedings were being undertaken at the behest of the prosecution all the expenses involved should be met from State funds. It is an issue that would have to be teased out fully.
Another issue that would require consideration if a procedure on the lines of that proposed by the Deputy were to be adopted would be the scope of a proposed prosecution power to appeal against sentence. Under the terms of the Deputy's Bill an appeal would lie in any case where a sentence had been imposed by the Central Criminal Court, the Special Criminal Court or the Circuit Court. This would include even cases which had been appealed to the Circuit Court from the District Court which are dealt with by way of a full rehearing. My inclination is that any appeal against sentence that might be permitted should be restricted to serious offences and I understand from the relevant parliamentary debates that this was also the intention of the British Home Secretary when he introduced the provision that became clause 36 of their Criminal Justice Act, 1988, in the House of Commons.
Finally, reference has been made in the context of these proposals to sentencing in rape cases. I would not like the impression to go out that we are soft on rapists. The opposite is in fact the case as can be seen from the statistics contained in the Annual Reports on the Prisons and Places of Detention. For example, of those serving prison sentences for rape during 1988 — a total of 65 inmates — 85 per cent were serving sentences of five years or more. More significantly, almost a half were serving ten years or more. Generally speaking, from a sentencing point of view, rape is being treated in our courts as the horrendous offence that it is.
I would like finally to make a general comment with regard to the public dissatisfaction which arises from time to time with the outcome of criminal trials. It has always to be remembered that our criminal justice system is a human creation and, therefore, like any creation of man, cannot be wholly perfect. Mistakes can, and are, of course, made. Therefore, while any changes we make may help to improve the system they cannot make it perfect. For example, the disquiet that was expressed at the recent acquittal on murder charges of two youths arising from an incident in Meath would not at all be affected by the provision of a prosecution power of appeal against sentence. In that case the decision was reached by a jury of ordinary lay people — the man in the street if you like — yet it still gave rise to dissatisfaction.
I will summarise what I have been saying. A fundamental change in our law of the nature proposed in the Deputy's Bill should be preceded by careful and detailed examination and consideration. Matters of principle and matters of detail inherent in such a change have to be addressed. The matter is currently with the Law Reform Commission, a body well fitted to undertake such examination and consideration. They have, as I said, now agreed at the request of the Attorney General to afford that examination high priority.
I would, therefore, in the meantime, ask the Deputy to withdraw his Bill and await the commission's report. I can assure the House that when it is published I will act on it expeditiously. The Deputy is right in raising the matter for debate but I hope he will accept the validity of my arguments against pressing his Bill further at this stage.
The Minister has covered the main ground from our point of view and I wish to say a few words in general support of his remarks. There are problems in the system of criminal justice and administration and the Bill seeks to deal with one aspect of those problems. I do not say that in a condescending way. It is not sensational or newsworthy for a Government backbencher to admit that there are problems in the system of the administration of criminal justice at present. However, there has not been a system of administration of criminal justice in any civilisation at any time which was not attended by problems because such systems are designed and operated by human beings who are fallible. In that respect, Ireland is not unique.
One problem which has attracted a great deal of media attention in recent times is a perceived leniency in sentencing policy. The Minister made the point — and I agree with him — that while this problem exists it is more apparent than real. In the vast majority of cases where a conviction is secured nobody disputes the fact that justice is done and is being seen to be done. It is the very odd case that attracts the sort of media hype which tends to focus the minds of journalists and the public on this problem at particular times. We must recognise that in this country, over the last five or ten years, we have had the phenomenon of intense competition among the media. I do not have to outline to the House the sort of pressure that puts on journalists to find sensational things about which to write and indeed to sensationalise things which should not be sensationalised. From that point of view a great deal of the problem relating to perceived leniency of sentencing is a media creation but it is an illusion.
I have attended criminal trials which were subsequently reported in the media. When I read the report of the trial I wondered if the reporter and I had been at the same trial. There is a tendency on the part of some journalists to look at the beginning and the end of a criminal trial and to leave out what happened in the middle. Having said that, there is no doubt that there is a problem, which the Minister acknowledged. The people who discuss the problem create a lot of confusion. There is loose, vague talk about lack of uniformity in sentencing, etc., but it can be said with certainty that there is a lack of consistent, well defined logical principles to underline sentencing policies. Having said that, one wonders to what extent one can have such a set of principles which will be suitable across the board, given the infinite variety of criminal cases. Of course that is not to say that we should not try and I was delighted to hear the Minister announce tonight that the Law Reform Commission have been given the brief to study sentencing policy and to bring forward coherent and — I hope — logical and carefully considered proposals.
One offshoot of the problem we are dealing with relates to the fact that the defence can appeal the severity of a sentence whereas the State cannot appeal its leniency. The Bill seeks to resolve the perceived lack of uniformity in the law relating to criminal sentencing and trials.
There are a number of defects in the drafting of Deputy O'Keeffe's Bill but I fear that time will not permit me to go into detail. In any case, I do not say that as a fundamental objection to the Bill because if it gets to Committee Stage we can deal with them in detail.
The question then arises as to why there is an apparent lack of uniformity in this area of sentencing policy. Why is there apparently one law for the State and another for the accused? One theory I heard advanced is that there should be no such thing as an appeal against the severity of a criminal sentence, that the trial judge is the proper person to decide on the sentence to be handed down because he was in a position to perceive the demeanour of the defendant in court, he listened to the witnesses and also heard the victim. Another theory advanced is that because of the importance of the liberty of the subject the fact that the accused is given the right to such an appeal is an exception to the general principle. There is some force in that argument but I have to say I do not find it overwhelming.
The area of sentencing policy is beset by a number of problems. The Law Reform Commission are looking at this area at present and hope to come up with some solutions. The proposal put forward by Deputy O'Keeffe in his Bill may very well become the law of this country when the Law Reform Commission have reported and their report is translated into legislative proposals in this House. I am not saying it is inevitable that it will become the law but I concede that there is a high likelihood that it will become the law. The area of sentencing policy needs root and branch consideration and not piecemeal tinkering. That fundamental consideration is under way and we should await its outcome.
In 1988 in the United Kingdom the change now proposed by Deputy O'Keeffe became law. I have discussed the matter with a number of criminal law practitioners in the United Kingdom and I have come to the surprising conclusion that controversy about perceived leniency of sentencing and a lack of uniformity in sentencing is still rampant in the United Kingdom even between different judges in the same Crown Court area. Before we think of something along the lines of the United Kingdom legislation as a panacea for our problems in this area we would want to give it careful consideration.
Logical and simple as the proposal in Deputy O'Keeffe's Bill may seem, it can give rise to a miscellany of unforeseen problems, as the Minister outlined in his contribution. I want to refer to one or two other problems to which it can give rise. It will increase the burden on the Director of Public Prosecutions' office. If this Bill becomes law the prosecution will have a further task which they do not have at present — they will have to consider each sentence given in a case where there is a conviction and reflect, if they are disappointed about it, on whether they can apply to have it reviewed. This will, of course, create an extra burden on an already overstretched criminal prosecution service. It would inevitably involve the allocation of additional resources to the Director of Public Prosecutions' office. I have no objection in principle to this — a good case can be made for allocating extra resources to that office — but I would be in favour of waiting to see what we can do in this whole area before agreeing to rush out and spend more money on it.
The second problem is that the proposal before us tonight will undermine the independence of the Director of Public Prosecutions. As the Minister has pointed out, the duty of the Director of Public Prosecutions is to ensure that the law is enforced fairly between everybody. His duty is to act in the public interest in that he is perceived as an independent referee between the State and the accused. If this Bill becomes law — we need to think carefully about this — the Director of Public Prosecutions will inevitably be exposed to public pressure which will undermine his independence. I can foresee a situation where the Director of Public Prosecutions will be exposed to lobbying and perhaps correspondence orchestrated by campaigns in the media. He may be the subject of public demonstrations and he will certainly be the subject of question after question in this House as to why certain sentences are not being appealed. In other words, he will be subject to pressure to do what he does not consider to be in the public interest.
As well as those fundamental theoretical difficulties, there will be many minor practical difficulties as well. In an ordinary trial the judge sees certain documents when he is deciding on a sentence, for example, probation officer reports, social worker reports, letters of reference etc. There is nothing in the Bill which indicates one way or the other whether the Director of Public Prosecutions will have access to those documents when he is deciding whether to refer a sentence to the Court of Criminal Appeal. If we go down the road of allowing people to refer sentences to the Court of Criminal Appeal on the basis of information which is less than the trial judge has we will be going down a very dangerous road indeed.
The majority of the Law Reform Commission took the view in their report on rape that the main purpose of criminal law is to deter and control crime. To the question: will the proposals contained in this Bill go any way along this road? — the answer is an emphatic no. I cannot imagine any criminal in my constituency or anywhere else who is setting out to commit a crime tonight saying to himself "I will stay at home because Deputy O'Keeffe has brought in legislation which will allow my sentence to be appealed and I might get what I really deserve".
Deputy O'Keeffe has done a good service and I do not question his bona fides. He has achieved the objective of getting the Minister to get on to the Attorney General to speed up the review of sentencing policy by the Law Reform Commission. Having achieved that, the Deputy should withdraw this Bill pending the outcome of that review.
The Bill before us sets out to tackle a particular problem which rears its head from time to time. This legislation seeks to deal with the problem in a particular way. As I understand it, the main purpose of the Bill is to give the Director of Public Prosecutions the right to appeal any sentence he believes to be too lenient. I am very much aware of the problem the Bill sets out to tackle, but I have serious reservations that this may not be the right way to go about this job. This Bill arises a series of questions which have not been answered.
I have to say to Deputy O'Keeffe that this Bill has all the signs that it was hastily conceived and not very well drafted. I am referring in particular to section 2 which is the meat of this Bill. If this measure was passed in its present form it would enable the Director of Public Prosecutions to appeal any lenient sentence passed on himself. I am sure this was not the aim of the person who drafted the Bill and it needs a great deal of work before it is suitable legislation.
In addition, the Bill sets out to confer additional powers on the Director of Public Prosecutions but is silent on the position of the victims of crime. Very often the one who suffers most from over-lenient sentencing are the victims or their families. They are the ones who are left to wonder how a person who murdered their father is sentenced for manslaughter or how a person who abused their child is allowed to get away with a caution. This Bill provides them with no redress other than a reliance on the Director of Public Prosecutions. We know, because the Director of Public Prosecutions has told us, that he picks very carefully the cases he will prosecute. We have to assume that if we confer this additional power on him he will not necessarily see it as incumbent on him to use that power to assuage the feelings of people who have been hurt by crime.
In a way it is ironic that we are debating this Bill on the same day as we have been discussing the problem of gross overcrowding in our prisons and the consequences of it. Whatever else this Bill will do, it will not reduce overcrowding in prisons. I would rather be debating a measure which is aimed at fitting the punishment to the crime. The most serious reservation I have is that the Bill misses the main point of the problem: inconsistent sentencing is a much bigger issue than lenient sentencing. This Bill will not have the effect, even if it is passed into law, of achieving the objective of a consistent pattern of sentencing by our courts.
All of us have heard a great deal in this House from time to time about the problems and suffering inconsistent sentencing give rise to. Two recent incidents, one of which has already been mentioned here tonight graphically demonatrate this point. In one case a young man was sentenced to six months in prison for stealing a car radio, while in the other case a man walked out of court free after pleading guilty to sexual abuse of an 11 year old child. Both those incidents occurred within a day of each other. Together they illustrate that justice is not served best by a totally ad hoc, inconsistent approach to sentencing policy. In fact, it can be said there is no sentencing policy at all. The Court of Criminal Appeal should be in the best position to elaborate on the guidelines which would underpin a proper sentencing policy. That court is a part-time one with rotating personnel. If it were a full-time, permanent court inevitably there would be a great deal more consistency in the way in which it built up sentencing policy.
The Programme for Government adopted by the present coalition provided for the establishment of an appeal court at civil level. No action has been taken so far to implement that promise. It seems to me that a permanent Appeal Court on the criminal side would be well worth considering. When John Rogers was Attorney General he requested the Supreme Court — in a case known as the DPP versus Tiernan — to consider appropriate sentencing guidelines in rape cases. At that time the Supreme Court refused to involve itself in that area, arguing that sentencing was a matter for the discretion of individual judges. Nonetheless, even having regard to that fact, it is open to this House to assign the function, by statute, to the courts, particularly to the Court of Criminal Appeal, of ensuring consistency in sentencing. That would be a better approach than that adopted under the provisions of the Bill before the House.
At present the Law Reform Commission are considering this whole issue; at least it has been my understanding that they were considering the matter up to this evening, yet another initiative of the former Attorney General, John Rogers. I was indeed surprised to learn from the Minister's comments this evening that the Law Reform Commission had been unable to undertake that examination to date since it is now three years since they were requested to do so. We must ascertain from the Minister whether this delay has been occasioned by lack of personnel, expertise or whatever. Having ascertained the reason for the delay we must then request the Minister to rectify whatever is the deficiency so that the Law Reform Commission can undertake this examination as speedily as possible. Since their examination has not even begun we can hardly expect their report too speedily. I must stress to the Minister that this work must be undertaken immediately and be given priority.
The Minister must use his influence in this respect and, if it transpires to be a lack of personnel, resources, expertise or whatever, he arranged to have such made available to the Law Reform Commission immediately.
I agree with the Minister that there is a strong argument for awaiting the recommendations of the Law Reform Commission in this matter but it is unfortunate that we shall have to wait longer than we had anticipated when coming into the House this evening. Like the Minister, I would urge the Fine Gael spokesman to withdraw his Bill until the report of the Law Reform Commission is available. I would not be satisfied with the Bill, as drafted. I assume it is capable of amendment should it reach Committee Stage. In view of the arguments advanced by the Minister and those I have represented this evening, I hope the Fine Gael Party will review their position on this Bill, having had the Minister's assurance — and again just now — that he will see to it that there is expedition in getting the Law Reform Commission to report.
For those reasons I hope Deputy J. O'Keeffe can see his way to withdrawing this Bill, affording us an opportunity to debate another Bill of wider scope than the one before us this evening.
There is great concern countrywide about whether there is uniformity of sentencing. It would be fair to say that, by and large, sentences handed down by our courts have been correct. Of course, there has been the odd case over the years in which it appeared to the general public, via the media, that a particular sentence was too lenient and which provoked much public comment.
The question I would pose this evening is whether the remedy proposed by this Bill is not worse than the disease. It has been wisely said by extremely experienced conveyancers over the years that no two sales are exactly similar. In the same way, in criminal law it can be contended that no two cases are exactly similar. Very often sentences that may appear to many to be too lenient when handed down by a judge are handed down in the light of a protracted criminal case when the judge will have had at his disposal facts which may not have been at the disposal of others who would seek to form a judgment or pass sentence on the defendant concerned.
I am extremely concerned with the contents of this Bill because I believe they would give rise to the question of whether our criminal justice system was playing cat and mouse with people's lives. Take the example of an individual convicted in a court, perhaps not sentenced to any period of imprisonment. The provisions of this Bill do not state when the Director of Public Prosecutions in his wisdom, might or might not decide to seek to have the case referred. For example, it might be a year later, two years, five or ten years later. In the meantime that individual may not have come to the notice of the authorities at all but will have had that terrible cloud hanging over his life. The question I would pose is whether that is fair. I contend that quite clearly it is unfair.
There is also the fact that if an individual is given what the Director of Public Prosecutions subsequently considers to be a lenient sentence, that would already have been the subject of comment in the media. No doubt the media would seize on the case as being one in which a lenient sentence had been handed down. In that event would it not be fair to say that, in as much as we had been ready to criticise certain British politicians for making public comment about an Irish individual facing extradition, it would be equally wrong of us to say, in relation to one of our citizens, that the media could criticise a sentence handed down to that individual. In fairness it could not be said that, in those circumstances, under those kinds of pressures, the appeal court would be in a position to hand down an impartial sentence. I believe that individual would be placed at grave risk, that any such proposal would prove unconstitutional.
The alternative would be to prevent any media speculation on the case once the sentence had been handed down. This raises the proposition that it would be possible under an amendment to the Bill, which is what would be required to make a case, after it had been disposed of sub judice. I do not believe any such proposal could find favour in any fair or democratic system.
The question arises also whether the Director of Public Prosecutions, having brought an individual to court, would not be a judge in his own cause in deciding to refer the matter back to a court of appeal with the leave of the appeal court. If it were held that the Director of Public Prosecutions was indeed a judge in his own cause in attempting to have reheard what had already been decided, that contention would not withstand the test. It is true that mistakes have been made but the question which arises is whether mistakes would also be made on appeal. Could a situation not arise where the Director of Public Prosecutions in his wisdom would be incorrect in relation to whether a sentence was too lenient and that the appeal court subsequently would also be incorrect in relation to its decision as to the leniency of the sentence? This in turn would lead to an injustice on the individual and would be unfair to him.
Where sentencing is concerned, place an individual in double jeopardy. It would be an unwarranted interference by the State in sentencing policy and I envisage the Minister for Justice being questioned every second month by Opposition Deputies about what he was going to do about a given case at a given time. Unquestionably, pressure would be brought to bear on the Director of Public Prosecutions through the media and other ways in an attempt to influence him on whether he should seek leave to put a case before the appeal court for further consideration. It is a fundamental principle of our law that an individual would not be placed in double jeoparty but this is what would occur in this case.
The argument has been made that it is possible the Attorney General could be the person who would decide whether to seek leave from the appeal court to refer a case to it but I do not think this would make any fundamental difference to the Bill. Because of these factors I am opposed to the Bill.
I support the Bill which has been drafted by my colleague, Deputy O'Keeffe. There is a need for us, as legislators, to review sentencing policy to see if the best interests of society are being served. It is most disappointing that the Minister succeeded in delivering a speech over a dozen pages long without saying anything positive other than that the matter has been referred to the Law Reform Commission, but even this news is bad given that we have been expecting to receive a report from the Law Reform Commission for some time. It is most disheartening to learn that the Law Reform Commission have not yet even begun to compile this report which was commissioned in 1987. This underlines more than anything else the need to look at the Law Reform Commission to see whether a special arm of the Law Reform Commission or a special reform commission should be established to deal solely with the updating and reform of criminal law. It is most disappointing that the Minister was not in a position to outline when this Law Reform Commission report will be published and whether it is his intention to commission interim reports or consultative papers. This underlines more than anything else the need for this House to act.
I hope between now and next week Members or the other side will see their way to give this legislation a measure of support and to allow the Bill to go beyond Second Stage. We can thrash out on Committee Stage the minor difficulties mentioned by the Minister and the concerns expressed by Deputies O'Dea and O'Donoghue but the longer we refrain from introducing the necessary reforms the more we are adding to the public disquiet. The Minister stated that, in principle, he is in sympathy with what we are trying to do and if that is the case we have a basis on which to work in the coming months.
Since an offender has the opportunity to have his sentence reviewed and to appeal to a higher court on the conviction or on the severity of the sentence, there is no reason the State should not be allowed appeal a sentence which it considers too lenient. We are not seeking to give the State the opportunity to reopen a case on acquittal but merely to have a sentence reviewed. Listening to some of the concerns expressed by speakers on the other side of the House, one would think this would leave the Director of Public Prosecutions in an impossible position where he would have to review every case which came before him and that the courts would be clogged up with appeals at the behest of the State. This is not the case. The Deputies on the other side of the House are well aware of this and they know that what we are seeking is to give the Director of Public Prosecutions the discretion to use this weapon where he deems it necessary.
In recent years there has been public disquiet and disquiet in legal circles about the length of custodial sentence imposed in a number of cases, some of which have been referred to by Deputies. No one is saying that the State should have a second bite at the cherry in every case or that there should be an onus on the Director of Public Prosecutions to act accordingly; we are merely seeking to give him the discretion to use this device.
In relation to sentencing policy — and this was referred to by the Minister — members of the Judiciary are likely to impose differing sentences in accordance with the merits of each case. This is very important. It is fundamental that each and every case would be judged on its merits and that there would not be mandatory sentences or slot machine justice where a mandatory sentence would be handed down. It is very important that the judge would have discretion as soon as the jury return their verdict, but it is also important that there be a balance. Therefore where the State or the Director of Public Prosecutions considers the sentence imposed by a justice does not fit the crime or is too lenient, he should have the opportunity to take the case to a higher court with the higher court, in turn, having the opportunity to review the sentence.
I am not particularly happy with the double jeopardy argument because at all times we would be dealing with cases where a jury has returned a conviction and we would be concerned only with the sentence imposed. Therefore it is not strictly true to say that we are seeking to give the State a second bite at the cherry so far as the conviction is concerned but rather that we are giving the State the opportunity to have the sentence reviewed. So far as an acquittal or conviction is concerned, the double jeopardy argument does not arise.