Dáil Éireann debate -
Wednesday, 9 May 1990

Vol. 398 No. 5

Private Members' Business. - Criminal Justice Bill, 1990: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Flanagan

Before moving the adjournment of this debate last evening I was dealing with the very important matter of the discretion of a trial judge, in all cases, to exercise due consideration on the basis of the evidence before him and the decision returned to him by the jury.

It has been said, but bears some repetition, that each case has its distinguishing features and characteristics, that in essence no two cases are exactly similar. Be that as it may, many hundreds of cases are dealt with in our courts on a weekly basis that bear remarkable similarity in aim, content and evidence. It is very important to bear that fact in mind in discussing the provisions of this Bill.

It is absolutely essential that a trial judge be afforded every opportunity of considering the various mitigating factors that may be put to him from time to time, such as the age of the offender, the history of the offender, in many cases the character of the offender, the circumstances in which the incident took place, the question of previous convictions, the question of evidence in the form that may be given by a probation officer, the evidence of a counsellor, the professional evidence of a psychiatrist, the evidence of a medical consultant and so on. It is very important that we allow such people give their evidence freely, that they be made available to a court at all times so that the judge be given an opportunity of teasing out all aspects of each case.

Our system of criminal law provides for maximum sentences and, in some cases, for sentences of minimum duration; that is as it should be. Nonetheless, I contend that the minimum sentence requirements, as far as possible, should be kept at a minimum. There have been calls recently for the imposition of mandatory sentences. I have in mind some of the Garda groups who have expressed alarm recently at the disparity of sentences as far as attacks on their members are concerned. They express the belief that, until such time as a system of mandatory sentences is implemented, its absence will give rise to an undermining of public confidence in the Garda Síochána. They advocate that consideration be given to a mandatory sentence for an attack on a member of the force. I do not believe the time is right for us to consider such a provision. Nonetheless it is a pointer in the direction of a certain fear among members of the Garda Síochána, one that has spilled over to members of the public, which can manifest itself in the form of disquiet at the inconsistency of the sentencing policy of our courts.

Again fundamental to criminal law, there is the avenue of appeal available to a convicted party which may be exercised in most cases following a conviction. For example, the entire conviction can be appealed or an appeal entered on the severity of sentence.

The provisions of this Bill allow the Director of Public Prosecutions a similar right. I do not believe it is asking too much that society allow the law officer, in the form of the Director of Public Prosecutions, such a mechanism. We must remember that, in the lawful exercise of his functions, the Director of Public Prosecutions represents the State and the public at large. At all times he acts in the public interest. If he forms the opinion that a sentence, for some reason or other, is too lenient, then he should have a mechanism available to him to allow that trial be rerun on the basis of the leniency or otherwise of the sentence.

Concern was expressed on the far side of the House last evening at the fact that such a proposal would undermine the independence of the Director of Public Prosecutions. We heard comments to the effect that there would be continuous representations to the Minister for Justice to put pressure on the Director of Public Prosecutions, that the position of the Director of Public Prosecutions might be in some way compromised by allowing him that right of appeal. I reject these criticisms as being unfair and unfounded. There is no provision in this Bill, nothing envisaged which would allow anybody make representations to the Minister for Justice — through a local politician, county councillor, party member or whoever — that might influence the role and/or functions of the Director of Public Prosecutions. The independence of the Director of Public Prosecutions will not be in any way compromised or tarnished by allowing him this vehicle of appeal. It is beyond belief to suggest that there can be any correlation between allowing the Director of Public Prosecutions this mechanism and allowing people make direct representations to the Minister of the day. I want to nail that myth.

The purpose behind the introduction of this Bill is the disparity in sentences which is causing such concern. Granted, as the Minister said, it does not happen on a daily basis but it has happened all too frequently in recent years. When one looks to the Department of Justice, to the courts for evidence of consistency of sentencing, such evidence simply is not available. To the best of my knowledge it has not been compiled. There is no source of reference available to this House, to any interested party or to any law officer to undertake a study of the level of consistency or lack thereof as far as sentencing is concerned. This is something we should examine. It is important that we examine cases that have gone through our courts over, say, a five year period to ascertain the level of disparity and/or inconsistency obtaining. It is my belief that we would be surprised by the level of inconsistency revealed.

On the question of inconsistency in sentencing, I would like to draw the attention of the House to the Supreme Court judgment in the case of the Director of Public Prosecutions v. Tiernan delivered on 13 May 1988 by Chief Justice Finlay. The defendant had been convicted and sentenced to 21 years penal servitude. The appeal to the Supreme Court was brought pursuant to a certificate issued by the Attorney General, pursuant to section 29 of the Courts of Justice Act, 1924, on 9 March 1987.

The Attorney General certified the decision of the Court of Criminal Appeal on the grounds that it involved a point of law of exceptional public importance, that it was desirable in the public interest that an appeal should be taken to the Supreme Court and that it involved the guidelines which the court should apply in relation to sentences for the crime — in this case — of rape.

In the course of his judgment, Chief Justice Finlay had this to say:

Both the Criminal Divison of the Court of Appeal in London, in the case of R. v. Ballam, and the Court of Appeal in New Zealand, in the case of R. v. Puru, were dealing with cases where a number of different decisions were brought before them for review or consideration, and where evidence was submitted of overall patterns or tendencies in the imposition of sentences within their jurisdiction for rape. The specific purpose of this form of multiple appeal in the case of R. v. Ballam was to seek from the Criminal Division of the Court of Appeal a broad statement on policy, almost amounting to a range or tariff of appropriate sentences for rape of different kinds.

Having regard to the absence of any statistics or information before this Court in this appeal, concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar) and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.

It is important that we have the view of a member of the Judiciary on standardisation and inconsistency. In the same case Mr. Justice McCarthy had this to say on the question of consistency and standardisation:

I recognise the need to give guidance to trial judges as to the matters to be taken into account when assessing the penalty appropriate in any given case. I do not subscribe to what is apparently the view in England and New Zealand that there should be any particular minimum standard; there is a maximum — penal servitude for life. The trial judge, subject to due consideration of the matters specified by the Chief Justice, and taking into account what further matter may properly appear to be relevant in the particular case, should have a true judicial discretion as to the sentence appropriate in any case.

In this instance we have the Attorney General seeking guidelines with the Supreme Court indicating that it is not appropriate, given the lack of information, for such guidelines to be laid down and arguing for the status quo to be maintained. Last night the Minister had very little to say but that we should await the report of the Law Reform Commission who were requested in 1987 to consider this and other related matters. The one positive thing the Minister had to say was that he was going to ask the Attorney General to request the Law Reform Commission to accord priority to this matter, but I wonder how long we will have to wait for this report given that the Minister in the course of his address stated that in his opinion the Law Reform Commission are grossly overworked at present.

Prior to the introduction of this Bill I do not think this House considered the question of sentencing or the right to appeal, but we can get an indication of the way the House feels from the fourth report of the Joint Committee on Women's Rights. On the question of sentencing the committee had this to say:

The Committee are convinced that in the interests of having a consistent level of sentencing by all judges, a set of guidelines for sentencing should be laid down for sexual offences and for all other serious crime. Such action would not only allay the fears of the general public, it would also help to maintain a high level of respect for the law.

Arising from two important points Fine Gael drafted the Private Members' Bill before us. Having indicated that inconsistency in sentencing has given rise to public concern, I do not wish to give the House any examples as plenty abound, some of which were referred to last night.

A number of vehicles are available to an offender some of which give rise to concern. First, in cases involving a very serious criminal charge at the Circuit Criminal Court applications are often made to have the case tranferred to Dublin, the idea being the offender would avoid local odium if the case was transferred to Dublin or some other area. There are also glaring differences in the sentences handed down by judges. What would warrant a suspended sentence in one area would warrant a sentence of two years in another. Then there is the question of adjournments when people have to wait for a particular judge to hear a case. This is not unusual but it is a practice which should be stamped out. Attacks on members of the Garda Síochána have also given rise to concern, as I stated earlier. In the past people convicted of assaults on members of the Garda Síochána have been subjected to the Probation Act, given suspended sentences or hefty prison sentences, which do little to allay public concern.

The role of the media was referred to last night by Government speakers who indicated their intention to oppose the Bill and by the spokesperson for the Labour Party, but what we have to bear in mind is that it would be very difficult for the media to influence a decision to be handed down in a case taken under this Bill given the fact the jury would already have convicted the person concerned. Are we saying that public comment influences a learned judge of the Appeal Court or an experienced judge of the Supreme Court as these are the only people who could be influenced by the media in the circumstances? I do not believe that a senior judge of the Appeal Court would be influenced by the tabloids peddling alarmist trash of the lowest common denominator. The judges of the Appeal Court are experienced people who will not take into account any comment by the media, alarmist or otherwise, in arriving at their decision.

A majority of the House appear to have indicated that they will not allow the Bill to proceed to Committee Stage. Notwithstanding that, I believe there are other avenues available that could be explored with or without this Bill. It is very important that retraining and refresher courses be made available to the members of the Judiciary from time to time. The Minister himself stated that judges are human. I agree. Sometimes it is very difficult for them to reach a decison, but they should have available to them all the necessary techniques. There are situations where a judge might be appointed from Chancery to a criminal court. If we are to avoid public outcry, statements from politicians and a sensationalist press, we must put these mechanisms in place. The President of the High Court and the President of the Circuit Court should meet with their colleagues on a regular basis and if they will not do that there should be a statutory provision, as there is in the District Court. Until such time as they meet on guidelines we will be faced with the type of criticism that gave rise to this Bill. We need concerted action on the question of sentencing and this Bill is a start.

Prison sentences and prisons have given rise to much debate in recent weeks. One point that is staggering is that in 1989 1,000 people served terms of imprisonment for however short a time because of the non-payment of fines. The cost of our prison service is £70 million, a staggering amount. We must look to alternatives and there are a number of alternatives which have been working quite well. There are others, such as community service orders, the payment of fines by instalments and the payment of fines that reflect the circumstances of individuals rather than a blanket fine which we have at the moment.

House arrest could well be an alternative to prison; somebody would be confined to their house after work or school and fitted with something like an electronic tag that would set off an alarm in the Garda station if they moved outside the confines of their house. This is something we believe we will see in the future and that we should be considering. Another possibility is weekends in prison rather than hefty prison sentences for people who have been convicted of not very serious charges. They could perhaps serve a weekend in prison for a period of maybe, 25 weeks. Such a sentence would cause considerable hardship without the person having to be removed from society and away from their family and responsibilities.

The question of compensation for victims is another day's debate but it should be considered along with the question of confiscation of property. We must have a debate on our entire system of criminal justice. This Bill is a start, although I do not suggest it is a panacea.

Some concerns were expressed about the time limit within which the appeal papers could be lodged and about the manner in which the appeal could be tendered. These are not very serious and could well be thrashed out on Committee Stage if the Bill were allowed to get through Second Stage.

I regret that the Minister was so negative in what he said last night on a matter of such importance. It was a feeble attempt to smooth over many of the serious problems we have in our criminal law system. I welcome what he said about the Law Reform Commission report but if we are to wait a number of years for this we are not tackling the problem as we should. Our criminal law code must be modernised and simplified so that the needs of society will at all times have priority and be met.

An Leas-Cheann Comhairle

I must call someone from the Government side.

Mr. McCartan

I understand that the first round went to the parties.

An Leas-Cheann Comhairle

Tá tú déanach. That would have obtained if the Deputy's party had offered at the appropriate time.

Mr. McCartan

I would not think we should lose the preference simply because other groups did not take up their full time. However I wish to listen to Deputy Ahern.

Mr. D. Ahern

With the permission of the House, I would like to share some of my time with my party colleague, Deputy Flood. I will be very interested to hear what Deputy McCartan has to say in relation to this Bill. I listened with great interest to what Deputy Kavanagh had to say last night and I thought he made some very pertinent points in relation to it.

I do not accept Deputy Flanagan's comments about the Minister's contribution. The Minister said bluntly that he was opposed to the Bill but he did accept that like most Members in the House he would have some disquiet at sentences that have been handed down from time to time by our courts. Most people in the country would.

Having said that, the Minister did point out in a very frank way a number of areas where he felt there were problems with the Bill as drafted and obviously he had the weight of his Department behind him. While he did accept that bona fides of Deputy O'Keeffe he quite validly pointed out a number of the problems that arise from this Bill.

I personally have some difficulty with the whole idea of allowing the State to appeal against severity of sentence. It goes to the root of our Constitution which guarantees the independence of our Judiciary in Article 35. I would think this Bill would be open to constitutional challenge if it was passed. Some people say there is an Act of similar proportions in England but England does not have a written constitution and our Constitution was very specific on this. That is one of the main reasons I feel that allowing the State to appeal what some people would regard as lenient sentences is fraught with constitutional difficulties. We should tread very warily in that regard. I entirely agree with what the Minister has said in relation to the Law Reform Commission. I would agree with some Members that unfortunately the Law Reform Commission have delayed in bringing forward a report but hopefully as a result of the impetus this debate and the request from the Minister have given the Law Reform Commission will come forward as quickly as possible with their recommendations in this regard. This whole area needs much better debate not only here but also outside among the Judiciary, among the legal profession and also among victim support groups etc.

Another area touched on last night was the area of conferences of judges. I have had a lot of contact particularly with Circuit Court judges and I do not see any constraint on them to have conferences. I know that they meet from time to time. There is a statutory basis, as Deputy Flanagan pointed out, in the District Court, and I believe this should be extended to the Circuit Court, the High Court and the Supreme Court. I know that the judges meet on a voluntary basis. It is slightly spurious of Deputy O'Keeffe to say that they will not go to these conferences because they are not getting travelling expenses. That is very unfair. Irrespective of whether they get travelling expenses they have met with one another to endeavour to have some consistency of sentencing, and that is to be encouraged. I noted with some interest the observations made by the Director of Public Prosecutions at the Incorporated Law Society's annual function in Killarney when he called for a complete reform of criminal law. I agree entirely with him. The whole area of criminal law should be looked at. Tinkering with the code of criminal law with small Bills here and there — I criticise the State for doing this as well — is not the right way to go about it. We should have an overall look at the criminal law area because there is no doubt that most people outside of this House are very worried about the level of crime and the State's response to it, whether by the law enforcement agencies, such as the Garda Síochána or the Army or through the Judiciary. There are some very valid criticisms levelled against our courts because of decisions that have been handed down. However, personally I think the vast majority of the decisions have been good and could stand up to the test of time. Obviously mistakes will be made from time to time and to a certain extent this Bill is a reaction to some of the recent mistakes that have been well publicised over the past number of months.

While it is not an area for this Bill, I exhort the Minister to investigate much more thoroughly the alternatives to custody. I am a very strong supporter of community service. I have seen it in action in my own area and I think it should be encouraged. It would be one way of ensuring that our prisons are not full and as a consequence we would not have as many problems, as we are having, in our prisons. It was very interesting recently to hear Justice Delap in a television interview say that out of approximately 49 cases where community service orders were made, the vast majority, approximately 46 of those concerned ended up doing their community service and only three went astray. That is an indication that not only the Judiciary and the people dealing with offenders in court welcome community service orders but, obviously, the victims also would rather do community service — this is recognised by most people — that serve a period in custody.

The suggestion made last night that the Director of Public Prosecutions could be exposed to lobbying is valid. It is a bit naive to say that he would not. At present he quite rightly refuses to make public comment on cases that come before him from time to time. Given the level of hype that could be engendered by some recent decisions I have no doubt that if there was an avenue whereby the State was entitled to appeal, Deputies would be standing up in this Chamber wanting to know why the Director of Public Prosecutions was not appealing a particular case under the legislation. I have no doubt that the newpapers and the media in general would be calling for the Director of Public Prosecutions to act in cases where he might not want to do so.

If this type of provision were enshrined in legislation, whether in this Bill or in a Bill brought forward by the Department of Justice, it would lead to something that I am not in favour of, plea bargaining, which is in vogue in a very big way in America. It would do a great disservice to our judicial system in the area of criminal law if there was an element of plea bargaining creeping in as a result of the possibility of the State putting in an appeal. For Deputy O'Keeffe to say that it would apply in only very few cases is something I would not agree with. Once the State was dissatisfied with any decision it would immediately put in an appeal in the hope that it would be allowed to bring the matter to the Appeal Court and at that stage perhaps an element of plea bargaining would creep in. I envisage that is a very great possibility.

Deputy Kavanagh put his finger on what is wrong with sentencing and that is the inconsistency rather than the leniency in sentencing. We should really be looking at this, and a better way to deal with it is to have conferences on a statutory basis which would examine things in a much more detailed way. If the judges feel — I do not agree with this suggestion — they cannot do this because of the lack of travelling expenses, then pay them the travelling expenses. I do not honestly believe that is a valid reason and that suggestion is a disservice to judges.

My colleague, Deputy O'Donoghue, referred to double jeopardy and the Minister referred to double punishment. There is a grave possibility that we would infringe the rule of double jeopardy by allowing a convicted criminal to go through the hoop twice. This would be most unfair and would not be in keeping with the concept of our judicial system which we hold in very high esteem. We often criticise other jurisdictions and judicial systems. In order to maintain our judicial system, we should look very carefully at any proposed reforms. However, as I said earlier, we should codify the judicial system in some way.

The Minister, Deputy Burke, referred to the media commentary during an appeal. That is a very great fear and we should look at this area very carefully. Perhaps it is something that the Law Reform Commission should examine in great detail. Another point, and this may have been mentioned before, is the time limit for appeal. There is no reference to this in the Bill but perhaps it would be taken care of under the rules of the court. However, there is always a possibility that a court, if it was put to them would allow the State to lodge a late appeal. Again, this would be grossly unfair to someone who had been convicted already who was probably languishing in jail for a period and might then find he had to do an extra stint in jail.

As I said earlier, mistakes are made, but in the vast majority of cases the decisions are good. I wonder why Deputy O'Keeffe has chosen to limit the provisions of the Bill to the higher courts and not to encompass the District Court. Many decisions that the media comment on are District Court decisions and not decisions of the higher courts. Perhaps someone on the far side will respond to that point later.

Unlike the Minister, I do not think it is a good idea that the State could appeal against lenient sentences. There are other areas of criminal law that we can reform, for example, the right to silence or practices relating to custody of suspects. We should be looking at the beefing up of the Garda Síochána because there is no doubt that there is grave disquiet among people about what is happening in our towns and villages around the country.

I repeat that I do not think tinkering with the criminal law in this fashion is recommended. I ask the Minister to request the Law Reform Commission to have a much more detailed look at the whole area of criminal law so that we can put it on a better footing in the long-term.

Mr. Flood

I am pleased to have the opportunity to participate in this debate. Every so often arising out of a court decision a public debate takes place on the issue of Deputy O'Keeffe's proposed legislation. During the course of such debates views have been expressed from a variety of quarters but unfortunately the end result is that no specific action has been taken down through the years to put in place a mechanism that allows the State to carry out a review of lenient sentences. Very frequently, the ordinary citizen is baffled by the fact that an offender can appeal his sentence, while the State, generally speaking does not find itself in the same situation. That is one of the reasons people believe there is a need for a change when sentences are too lenient. It is why, as has been already stated by the Minister and other speakers, the whole question has been referred to the Law Reform Commission. As other speakers have also said, it is a pity that report has not yet been presented by the Law Reform Commission but I understand the reason for that. If one studies their most recent report on another issue one will see that they have been extremely active over the years in presenting various reports, discussion papers and so on. I have found the reports which I have had an opportunity to read and study very helpful in my job as a legislator. The Minister for Justice, Deputy Burke, is probably right in saying that this legislation is very complex. We require the best possible advice and assistance in drawing up legislation which will provide for the implementation of a mechanism to review lenient sentences. It is important that legislation in this regard is not flawed or rushed but is based on sound information and facts and, above all on sound judgment.

The Law Reform Commission are probably the best people to assist in this regard. The Minister has indicated that he will be taking into account the report the commission will bring forward. In his contribution he expressed his anxiety that that report would be made available as quickly as possible. He has sought the assistance of the Attorney General in an effort to have the matter dealt with as speedily as possible. Arising out of this debate and out of the imposition of lenient sentences in certain cases, we are all agreed that there is a necessity to put appropriate legislation on the Statute Book.

Last night the Minister for Justice complimented Deputy O'Keeffe, rightly so, on the work which had undoubtedly been put into the preparation of the Bill. The Minister accepted that the Bill in question is motivated by a concern to improve the administration of justice in our courts. He also went into detail on the specific reasons he is opposing the Bill at this stage. As has already been said in this debate, on occasion there is very grave public disquiet concerning the sentencing policy of our courts. There are specific cases where, on the surface, the sentence does not appear to fit the crime in question. As I have said, citizens look to us as legislators to update legislation to provide that the State can take action where a sentence may appear to be too lenient.

We are often informed through the media of various court cases, the sentences handed down in these cases and we then make a rash judgment on the correctness of the sentence imposed but we should not rush into judgment from the outside unless we have all the information and facts relevant to a particular case, as have those who participate in and are present at the case in the court room. The publicity about specific cases, some of which have been referred to in this debate, has been wide off the mark and is not helpful to a debate of this kind. In fairness to defendants, the media do not always report the main thrust of the case put forward for the defence. Those of us on the outside then come to a particular conclusion about the sentence handed down, based on the one-sided information available through the media, conclusion is very often incorrect.

At present an offender can appeal against a conviction and also against a penalty imposed if he or she considers it is too harsh. As I have said earlier, it is surprising that the State on the other hand simply cannot appeal against a sentence which the public may consider to be too lenient. A debate of this kind could lead to the assumption that a harsh sentence which benefits a particular crime can help the victim of the crime in question but I do not believe that is always the case. Certainly victims to whom I have spoken do not always insist on a severe sentence.

This is quite a complex matter and there is need for proper and adequate victim support. We should ensure not only that the victim is satisfied but also that the sentence handed down by the court is sufficient to meet the severity of the crime. Support for the victims of crime is a fundamentally important matter and the State must become more involved in this area. The Victim Support Organisation are expanding and becoming increasingly busier in helping the victims of crime as each year goes by. These crimes do not have to be serious crimes; various petty crimes frequently leave in the minds of those who have been injured a legacy of fear and intimidation and this is something the victim support groups are beginning to tackle. The State has a role to play here and we should become more conscious of our responsibilities as legislators in this regard.

Mrs. Barnes

We could continue to fund them.

Mr. Flood

I do not deny that that is important. The victim support groups do a tremendous job and need all the help they can get. This Government or any other Government would be well advised to support such organisations, particularly financially.

Deputy O'Keeffe's Bill includes no safeguards for the offender, in particular with regard to a time element. Some of my more learned colleagues in the legal profession who have contributed to this debate have spelled out very clearly the reasons there should be some time limit with regard to the State making an appeal in relation to a sentence it considers to be too lenient. Reference has been made to the comparable legislation of 1988 in the United Kingdom which imposed a time limit of 28 days for the making of such an appeal. An offender should be entitled to some time limit — I am not saying 28 days is the ideal time limit because there may be constraints with regard to the case in question or there may be some other issue of a legal nature but a time limit ought to be imposed and that is something I cannot discern in the legislation. Under this Bill it falls to the Director of Public Prosecutions to initiate the procedure for reviewing a particular sentence. In general terms where a member of the public felt that a particular sentence was too lenient, under this legislation there could be a public campaign to try to compel the Director of Public Prosecutions to take a particular decision. Because no time limit is imposed that campaign could roll on and on. That would not be helpful either to the convicted persons or to the Office of the Director of Public Prosecutions. I am not sure how we could get over that difficulty. The last thing I would like to see would be the Office of the Director of Public Prosecutions subjected every other month to a concerted campaign on a specific sentence which might be considered by some to be too lenient. That is something we must take account of in any legislation we bring forward to deal with the issue.

The Bill appears to resemble the English Criminal Justice Bill, 1988. While that Bill may be suited in general terms to legislation for this jurisdiction, I do not think — and the Minister pointed this out last night — it necessarily follows that it would be good legislation for Ireland or that it would suit this country. As I have pointed out, there is the finer point regarding the time limit but there are other aspects about which I would not be happy.

This Bill seeks to deal with the review of over-lenient sentences which is an important issue and one which we should come to grips with. We all recognise there is a difficulty and that the public need to be convinced that they can have confidence in our judicial system. Any legislation which does not unnecessarily infringe on the rights of the individual but which encourages public confidence in our judicial system would have a great deal of merit. The debate on this issue in the past, sometimes based on media hype, has not been well informed and has not been always in full command of the facts from the prosecution and defence sides. For that reason it is better to wait for the Law Reform Commission report to give us the benefit of their examination and consideration. I am sure the Law Reform Commission can take submissions from experts and other interested individuals and organisations. They would then produce a report that would be of assistance to any Minister for Justice trying to implement a mechanism that could lead to a review of lenient sentences. I do not for one moment say that the legislation is not required; I believe it is. To be of benefit to the State, and to be fair to both sides, the legislation must be based on sound principles which can be arrived at only through debates of the kind we have had on this Bill, and also through a report from the Law Reform Commission, or indeed any other organisation——

Mr. McGahon

Four more years.

Mr. Flood

——that wish to put forward their point of view. I take the point that the issue raised by Deputy McGahon is a concern of the Minister for Justice. He has indicated in this House that he is asking that the report be given the priority it now deserves.

Mr. McCartan

One of the first things that emerged from the debate so far is that there is all-party agreement in the House on the general principle that there should be in place a mechanism where the prosecution are worried about the inappropriateness of the sentence passed — and, in particular, the leniency of it — so that the prosecuting authorities would have the right to pursue the matter in a higher court. Every party spokesman supports that general principle. Equally, The Workers' Party support that principle and will be supporting the Bill which is a fair and reasoned measure to address the issue and to bring forward a legislative formula to bring the matter into law. They have to be commended for responding so quickly to the issue and the debate which recently arose out of a number of notable, if not notorious, instances of inappropriate sentences being passed by our courts.

What has emerged from the debate so far is an incredible array of spurious and other reasons the Bill may not be supported by the Government. I understand why the Labour Party would be anxious for the Law Reform Commission to report. It was on their initiative, when in Government with the Fine Gael Party, that the matter was referred to the then Attorney General, John Rogers, who requested the Law Reform Commission to take up this issue along with a long list of other matters.

For the Minister for Justice to suggest that it is incumbent on us to wait for the Law Reform Commission to report on the matter and to use that as the main plank for opposing what was on the face of it a very worthwhile and fair attempt to address this issue, is somewhat disingenous. I say this because when we dealt with the Larceny Bill, which is being danced around in the Seanad at the moment — we addressed the issue of handlers and the disposal of stolen property and we had at that time a very detailed and worthwhile Law Reform Commission report which was dumped in the wastepaper basket by the Government and ignored.

The Minister had passed in this House a Bill which his party had devised when in opposition, which they had tuned with the aid of the Office of the Attorney General and his officials in the Department, and presented it here on the basis that it was a preferable and better option. All those resources are available to the Minister for Justice to deal with the issue of whether the prosecution should have the right to appeal lenient or inappropriate sentences. The Minister has the Office of the Attorney General and all the expertise in the Department of Justice to help him address this issue which is presented in the guise of the Bill from the Fine Gael Party. To criticise this Bill as a genuine effort simply because the Law Reform Commission have been asked to give priority to this consideration is having it both ways. I cannot understand how the Government on one occasion in an important area of legislative reform can ignore the work of the Law Reform Commission who had produced the report and on the other hand say we must wait until the Law Reform Commission report.

If the Government are anxious to deal with the report of the Law Reform Commission, I would remind them of the remarks the chairman of the commission made not so long ago. He said there are in excess of 30 substantial reports recommending reform of the law be it criminal, civil or otherwise, sitting on the shelves in the Library here or in the Minister's Office and elsewhere, requiring to be addressed. That again throws into relief the seriousness of the Minister's reserve in this regard. If you are going to look to the Law Reform Commission every time the Opposition present reforming legislation in the area here and say that we must get the report of the Law Reform Commission first — I anticipate that device will be used more and more — then it is also incumbent on Government to give proper and fair resources to that organisation, increase their staff, give them the opportunities to do their work and avoid what has happened here, the fact that an important and urgent issue has been sitting with them for four years simply because they have not the resources to address the huge area of work we expect them to deal with.

This is a succinct and precise issue, and when the formula devised by the Fine Gael Party in the Bill as circulated is ultimately addressed by the Law Reform Commission — I do not wish to usurp their wisdom or intentions — they will not come with anything better or greater in divergence from what is being proposed here. The issues are simple and straightforward and have to be addressed within the overall framework of the criminal justice system as administered at the moment. For that reason the Bill should be supported.

There are obviously many issues to be debated and discussed, and the Minister touched on many of them. I would like to look at some of them, but that is the whole essence and purpose of debate, to come in and discuss and see if we can improve upon or amend the legislation before us.

The Minister's first concern was to see that there would be uniformity in overall sentencing policy, although it was not spelt out in the address he made to the House last evening. That is not really a matter for which one can legislate. If you wish to develop uniformity of sentencing among the Judiciary, the best way to ensure that is to have proper educational facilities available, on-going review of social and legal matters, seminars, directives and advice coming from the Department or from some other authority to the Judiciary as a whole. I believe they lack serious information. They lack serious direction on what is happening, for example, whether our prisons can accommodate more prisoners, whether the policy of locking up any class or type of prisoner is having an impact on the incidence of that crime or whether there is a need to rely on non-custodial sentences or the like. None of this is being addressed in an informed way.

No research is being done on society to be made available to the Judiciary upon which to arrive at their decisions. Anyone who works in the courts and looks at the way decisions are arrived at from day-to-day often comes to the conclusion that it depends on which side of the bed a judge might have risen from in the morning, how he or she might have read the headlines in the newspapers or what he or she last watched on TV to come to a conclusion that this is the issue to run with, this is the way to deal with a particular offence at the time. The way to arrive at uniformity is through education and on-going direction from the Department as to what is socially required. Our courts and judges are far too remote from the day-to-day needs of society.

The next issue the Minister raises is a red herring in this area, that is the problem of double jeopardy. The Minister said: "Strictly speaking the concept of double jeopardy relates to the question of acquittal". Of course it does. There is no question of putting a person in jeopardy a second time by having an inappropriate sentence reviewed. I am surprised that the Minister raised it. He says it should be debated. He makes the observation, and in all of these debates makes no attempt to come down one way or another or indicate his view on a point. He goes on then to deal with the question of fairness and talks about it in a way which again makes it difficult for me to understand why this is being presented as an issue. He asks the question: if a person who has been on bail or in custody awaiting trial is then convicted or dealt with and sentenced, would it be fair to have the sword of Damocles hanging over the head of that person after the trial? It is interesting that, coming up to trial when on remand or on bail, the accused is an innocent person but has to suffer all the discommodity of the trial and the disruption that that imposes on his or her life. After trial and sentence that is dramatically changed. The person is now a convicted person. To suggest that the convicted person at that stage would have to await a review of an inappropriate sentence is introducing an element of unfairness, a spurious issue, and simply not facing up to the provisions in the Bill. If the issue of fairness is to arise in this debate it is the unfairness to the victims in cases in which inappropriate, lenient sentences are imposed. There is no getting away from it, the suspended sentence of imprisonment imposed on a soldier in the face of a heinous and vicious crime of rape was utterly inappropriate, completely out of order. To suggest that the prosecuting authorities would have no basis to pursue that matter by way of a review is unfair, and it is only right for that reason if for no other that we address this issue of whether a right of appeal in certain instances should be available to the prosecution.

The issue of independence of the Judiciary is introduced by the Minister. There is no question in this Bill of interfering with that independence. In fact, the moving authority is the prosecutor in bringing the prosecution and then bringing the matter back to the Judiciary if the prosecuting authority is unhappy with the sentence. It is the Judiciary who decide the matter entirely.

The issue of sub judice and public comment arises. It is quite clear that once a conviction is recorded the matter remains sub judice until the time allowed to lodge the application for the review expires; the media would not be in a position to make comment until then. That is clear. There is a clear, easy answer to it. If the Minister had been prepared to allow the discussion to develop on this Bill in the ordinary way debate takes place here on legislation, he could have been assured on this and on many of the other matters. No, these are all issues thrown into the pot in the hope of building up a case that the Bill should not be debated, looked at or given a Second Reading because the Minister simply does not want to listen to the issues or ideas of reform coming from the opposite side.

The question of the Director of Public Prosecutions being the moving authority is a further point raised. Should it be the Attorney General or whoever? I have no problem about this. There are arguments on both sides, and there is no problem if at the end of the day the collective view of this House is that the Director of Public Prosecutions is not the appropriate person, that it should be the Attorney General as in the British formula. If, having rejected the idea that we could borrow from the British experience earlier, the Minister then comes back to say that in Britain they have the Attorney General and we should have him here, I have no difficulty. All that is required is a two-word amendment to the Bill to delete "Director of Public Prosecutions" and insert "Attorney General" and the job is done. What is the need for kicking this back, as Deputy McGahon suggested, for a further four years? I am saddened by the Minister's approach to this suggestion. He uses the comfortable device of asking the Law Reform Commission to take up something they clearly had not intended in the schedule of their work with the resources available to them at this time. I regret the delay this will cause.

The issue of legal aid arises. The Minister is concerned as to how the unfortunate person would manage if he or she had legal aid because, although the current law allows for it, the regulations do not. It would take no more than half an hour to draft an extrta form and an additional section in the regulations to deal with that matter. Nothing more or less is required.

I am not convinced that we should defer this matter further. I accept that we would all be better armed when dealing with matters like this if we had the report of the Law Reform Commission but, because it is expected that it will take a long time for that to emerge and because the Minister did not have any difficulty in the past in dealing with important legislation to the complete disregard of the Law Reform Commission, I do not go along with the call that we should defer this matter.

I welcome the Bill and I should like to address a number of points raised in it. I query whether we should be confining the Bill in the way Fine Gael are suggesting. One of the most important issues raised in it is the manner in which drunk driving offences are prosecuted before our courts. Invariably they are dealt with in the District Court. Inappropriate sentences are passed almost on a daily basis in our district courts in rape cases, indecent assault cases and, in particular, drunk driving cases involving serious injury or death to innocent victims.

The Mothers Against Drunk Drivers have issued a manifesto in an attempt to address that problem. At its launch on 1 September last the Minister said his heart went out to the calls being made by that organisation. They are concerned about the inappropriate sentences being passed by our courts. A very good friend of mine was killed in the city of Dublin recently, mowed down by a reckless driver of a motor car. This issue concerns me greatly. I cannot say any more about the case because, having been dealt with in the District Court, it is under appeal. If there is a review of sentencing policy I will press for the introduction of a system to enable the prosecution to come out of the District Court in such cases and have the matter addressed by another court. I am not saying that that should be by way of a simple appeal from the District Court to the Circuit Court but the High Court should be asked by way of case stated to review a sentence imposed in the District Court.

The Mothers Against Drunk Drivers are more concerned about the nature of the charges being preferred, the preponderance of simple dangerous driving charges being laid as opposed to charges of dangerous driving causing death or, indeed, manslaughter. However, that is a separate issue from the one we are dealing with tonight but in regard to sentences there is a clear case for those convicted of drunk driving, particularly those who cause death or inflict serious injury, to be given a fair measure of the punitive system available to us. We must find a device to allow a higher court review the level of sentences imposed by the District Court.

In mentioning the case of the soldier charged with rape I should like to state that I was heartened to see the formation of the Outrage Group which consists of housewives and other concerned people. Many of them come from my constituency and they got together in response and put forward a number of demands. One of them was that where sentences imposed are inappropriate there should be a right of review by way of appeal to a higher court. In this instance we are talking about a review, about redressing the wrongs visited on the families or victims by inappropriate sentences imposed by our courts. We are not talking about every case. We are attempting to lay down guidelines, to lay down a pattern that will give direction to those concerned as to what is an appropriate sentence. We have to address that issue because there does not appear to be a willingness on the part of the Department, or the Minister, to take a leading role on this. Equally, there does not appear to be a commitment or a disposition among the Judiciary to get together to discuss this matter and work to develop a sentencing policy.

The Bill is good in that it provides the vehicle and the impetus for the Judiciary to address the question of sentencing. The Minister threw into the pot of issues to be looked at the question of whether it was appropriate for courts to deliberate on sentences or, more particularly, for the prosecutor to address the court on what is an appropriate sentence. That is what takes place at present. Prosecutors are constantly invited to give their comments and do so. The Minister has thrown that issue into the pot suggesting that there is more to this than meets the eye. An oversight in the Bill is the failure to provide time limits. There must be a strict time limit of 14 days maximum on the prosecutor to indicate his intention to seek an application to review a sentence. Those issues should be addressed and that could have been done had the Government agreed to give the Bill a Second Reading.

The Bill clearly involves sentence review upwards. There is no doubt that a person who receives a heavy sentence and is dissatisfied with it will appeal on his own and argue that the sentence should be reduced. In the Bill we are talking about increasing sentences in unusual cases. That raises the whole question of whether our prisons can tolerate more people being sentenced. It begs the whole question of whether we should have sentencing guidelines or a policy for the Judiciary. It is my view that we should have such guidelines. Our courts, while independent in their functions, have a service to deliver to the community. They must help us combat and deal with crime. The problem is that all too often they do not appear to be tuned into what we are trying to do.

This issue was drawn to my attention recently in a most horrendous way. I should like to relate to the House details of a case that sums up the way our courts have gone completely off the rails with regard to sentencing. The case involved a 20-year-old from Finglas West in the city of Dublin. He was unemployed, did not have previous convictions and was never in trouble with the law before. When travelling home on a bus he paid a fare which he believed to be the correct one. An inspector demanded that he should pay an extra 35p to bring the fare to what the inspector believed to be the correct fare. The youth indicated that he did not have that amount of money and he was prepared to get off the bus. The inspector refused to let him off the bus and he called the police. The youth was brought before the Children's Metropolitan District Court and prosecuted for the outrageous offence of not having an extra 35p. He was remanded twice on bail by the court and when he appeared on 27 April he had been assigned a solicitor under the criminal legal aid scheme. The district justice decided that he wanted the inspector in court to tell him more about this horrendous offence and he remanded the youth in custody to St. Patrick's Institution for one week. That young man was prepared to get off the bus and walk home but for 35p District Justice Paul McDonnell believed that the place for him was St. Patrick's Institution for one week. When the case came before the court again the district justice, having heard what the inspector and the probation officer had to say about the incident, gave the youth the benefit of the Probation of Offenders Act and dismissed the charge.

That illustrated more than anything how the courts are completely out of touch with what we are attempting to do in trying to combat crime or reserve places in prison for particular offenders. There is no clear sentencing policy. That young person should not have been sent to St. Patrick's Institution for one week under those circumstances. Indeed, it could be argued that the young man should not have been charged in the first place.

In this context, the Minister for Justice, in getting off his chest as much as he did in this House yesterday at Question Time in regard to events at Mountjoy Prison, maintained in answer to questions by myself and others that the alternatives to imprisonment were being fully looked into. He went on to say that 3,000 persons were committed to alternative schemes to imprisonment and that there were 2,000 in custody. I do not accept that argument and it is quite clear that the Whitaker Report of 1985, which the Minister says he has adhered to since he came to office ten months ago, is being ignored in this important area of sentencing and in attempting to invoke alternatives to imprisonment.

At page 44 of the Whitaker Report, under the heading "Extension and Strengthening of Non-Custodial Penalties" four or five specific areas are dealt with which the committee felt should be looked at by the Government. I do not have time now to go into them in detail but none of these areas has been developed. To give one example, the committee considered that in principle — and as far as possible in practice — fines and custodial penalties should be kept separate. However, we still put between 200 and 250 people into prison every year because they cannot pay fines.

Last week a married separated mother with three young children came to my clinic pleading with me to intercede with the Minister in regard to a term of imprisonment for one month for non-payment of her TV licence which she felt should not be imposed because of her inability to pay. Two men — one from my constituency — were committed to prison for non-payment of ground rent. Who can argue that we are reserving prison to combat serious crime when we are using valuable places for so many people who should never have been imprisoned in the first place?

The report talks about non-custodial orders being made and people with habitual problems in regard to drink and drugs being obliged to comply with those orders as opposed to simply locking them up in prison. Any attempt to increase or to overload the already overcrowded prison system must also incorporate a commitment to seriously reduce and review the type of prisoner we are committing to jail and what we do with them when they are locked up.

I am happy to have had the opportunity to address the Bill and I commend the Fine Gael Party for bringing it forward. I had hoped that the Minister would have taken the opportunity of realising that it was a concrete proposal addressing a particular problem. Instead of drumming up a list of spurious and unimaginative reasons for not supporting the Bill he should have allowed it to progress to Committee Stage. In the event of defeat I urge the Minister to bring forward his alternative proposals in this House so that this important issue can be addressed and our law improved.

Mr. Cowen

The purpose of the Bill is to improve the administration of justice in our courts by seeking to introduce a system of appeal which will be available to the State prosecutor — the Director of Public Prosecutions — against what are perceived to be over-lenient sentences along the lines laid out in the Bill.

It is proposed that the introduction of this procedure into our system of justice will help to defuse public controversy which erupts from time to time because of decisions by the courts which are deemed to be too lenient in relation to convicted criminals. It is contended by the movers of the Bill that the evidence of this public controversy arises where non-custodial sentences are imposed for serious crimes such as murder, manslaughter or rape.

While the independence of the Judiciary is accepted, it is felt by the movers of the Bill that the relative severity of sentences handed down may from time to time — albeit in rare circumstances — require the exercise of this new right of appeal by the State to review the sentence imposed. This right of appeal is envisaged only in the case of the Central Criminal Court, the Special Criminal Court and the Circuit Criminal Court. There will be a review of the severity of sentence only to the Court of Criminal Appeal. The raison d'etre of the Bill is that the punishment must be seen to fit the crime. It is stated that the background to the proposal is that there is a need for broad consistency in sentencing policy.

The point was also made, in support of the Bill, that the knowledge of such a power being vested in the Director of Public Prosecutions would give some comfort to the victims of crime while the case was being proceeded with. The Minister's speech, while acknowledging the bona fides of the Deputy moving the Bill, pointed out that we are talking about a very small percentage of cases which might reasonably be expected to be appealed by the State if this power was given to the Director of Public Prosecutions. In requesting priority to be given to the whole question of sentencing policy by the Law Reform Commission, it is envisaged that they will be dealing with not just the aspect of the right to appeal by the State but also the whole question of trying to bring about more uniformity in sentencing.

In this respect we must, as Deputy Flanagan pointed out, ensure that we retain a system whereby each case is judged on the evidence and circumstances pertaining to its own set of facts and that there would not be a slot machine system of justice whereby mandatory sentences are handed down without taking into account legitimate mitigating circumstances which do not excuse the crime but which, nevertheless, should have a bearing on the sentence to be imposed.

The Minister then outlined reservations about the provisions of the Bill which, it was contended by Deputy Flanagan, were rather minor difficulties which could be thrashed out on Committee Stage.

On reflection, I should like to have the considered opinion of the Law Reform Commission which, in turn, will be getting the views of experts in this field and other interested parties on the question, for example, of the right of appeal by the State where a suspended sentence is imposed. In such an example the implications for the individual concerned would be fairly drastic and we had precisely such an incidence in a most tragic and unfortunate case which was decided this week.

The time limit which should be imposed within which the prosecution could lodge an appeal is another question which must be answered. What are the implications for the independence of the Judiciary who have at present total discretion under the Constitution in sentencing policy? Would public comment be permitted where the sentence is appealed by the State? It is envisaged in the provisions of this Bill that the Director of Public Prosecutions shall have power to take the appeal. The involvement of the Director of Public Prosecutions is a question which requires a thorough examination and the promoters of the Bill are seeking to provide a procedure when, in appropriate cases, a review takes place to ensure that the public see that justice is done. In such controversial cases the spotlight will be on the Director of Public Prosecutions to see if an appeal on the grounds of leniency of sentence will be lodged. The Director of Public Prosecutions, in the exercise of his statutory function under section 2 (5) of the Prosecution of Offences Act, 1974, requires that the exercise of his function be independent and he may decide, contrary to the perceived public opinion, not to proceed with an appeal on the grounds envisaged in this Bill. On the basis that this extra power being given to him is not being exercised in that particular case his independent decision may in fact heighten public controversy rather than lessen it.

In the independent performance of his duties cases will arise whereby this power, if granted now, will not be used when the publicity attaching to the cases which generated public disquiet in the first place raised the expectation that the power of appeal would be exercised by the Director of Public Prosecutions. The publicity which such cases attract would have the effect of anticipating a certain course of action by the Director of Public Prosecutions which may not, on the facts of the case, be warranted in his opinion. It would have the unintended effect of undermining public confidence in the courts in those circumstances. It should also be pointed out that the Director of Public Prosecutions does not give reasons for the decisions he takes. The rule about not giving reasons for decisions — for example, a decision not to prosecute — has existed since the foundation of the State and has been followed by successive Attorneys General and by the Director of Public Prosecutions.

Debate adjourned.