I move: "That the Bill be now read a Second Time."
I thank the House for accommodating the Government in its anxiety to bring forward this legislation as a matter of extreme urgency. It is a comparatively short Bill, which has three main objectives. It will enable unduly lenient sentences to be reviewed by the Court of Criminal Appeal at the instance of the Director of Public Prosecutions. It will place an obligation on sentencing courts to take into account the effect a sexual or violent crime has had on the victim. It will authorise criminal courts to require offenders to pay compensation to their victims for any injury or loss.
As the House is aware, a Bill to this effect was introduced last autumn in the wake of public concern about the apparent leniency shown in a particular case of rape. It lapsed on the dissolution of the Dáil. This Bill includes some amendments to which I shall refer later.
I am introducing the Bill in an atmosphere that regrettably is very much akin to that which prevailed when the 1992 Bill was published. Indeed, public concern about the absence of any provision for review of lenient sentences is even greater than it was then. I do not propose to refer now to the case which has given rise to that concern except to say that yesterday I had a lengthy meeting with the victim and her mother. Her greatest wish now is to be left alone to get on with her and her son's life. All of us both inside and outside the House should respect her wishes. It would be inappropriate for me as Minister for Justice to comment further on the case, but I have a responsibility which I share with the Judiciary to ensure that respect for the law and its institutions is not diminished. I will endeavour to fulfil my share of that responsibility by promoting legislation such as this Bill and other Bills in the criminal justice area to which the Government is committed.
Since the events of last autumn it has become more and more the practice for sentencing courts to inquire into the effects of the crime on the victim and to explain any circumstances that would justify what otherwise might appear to be undue leniency. The occasional exceptions should not be allowed to obscure that very welcome development. I hope it will continue and be reinforced by the provisions of the Bill. If so, the need to review unduly lenient sentences will seldom arise.
I should emphasise the importance of the change in the law being made by the Bill in this respect. It is true that at present the Director of Public Prosecutions can appeal to the Supreme Court against a sentence imposed by the Central Criminal Court, but that right has never been exercised. The long-established tradition has been that a sentence imposed by a criminal court cannot be disturbed except through an appeal by the convicted person. That tradition is based on considerations of fairness to the accused, who is entitled to be assured that the sentence imposed will not be disturbed except for serious, compelling reasons, and also on a reluctance to intervene in an area of judicial responsibility. While therefore the Bill will allow certain sentences to be reviewed, the review will be initiated by the Director of Public Prosecutions, an independent authority, and will be carried out by the Court of Criminal Appeal.
The fact is that sentencing is not an exact science. There can be an enormous variation in the circumstances in which an offence is committed and in the effect it has on the victim. The sentencing judge must take into account any mitigating circumstances such as a plea of guilty, the offender's age and mental capacity, the possibility of rehabilitation and so on. The judge must reflect society's abhorrence of particular offences and bear in mind the need to deter others who may be minded to commit them.
That is why it is not, and never will be, possible — or even desirable — to have uniformity in sentencing. But what is possible and desirable is to achieve a reasonable measure of consistency. By and large the courts have handled this difficult task with reasonable success and it is only in exceptional cases that public concern has been voiced.
In pursuance of the aim of seeking a measure of consistency, the Courts Act of 1961 empowered the President of the District Court to call meetings of district judges. Those meetings take place at least twice a year. There is no such provision as regards other courts, but the judges of those courts do in fact meet regularly for this purpose. In doing so they have my full support.
I do not expect that the powers of review which the Bill proposes to confer will need to be exercised frequently. The Bill is concerned only with unduly — I emphasise "unduly"— lenient sentences. In other words, before a question of review arises, the sentence in question must be seriously out of line with what a judge who had taken all relevant factors into account could reasonably have imposed. As I see it, it is not a question of asking the Court of Criminal Appeal to review, say, a two-year sentence when it might be thought that a sentence of three years would have been appropriate. The trial judge would have to have made a serious error, a serious breach of accepted principles of sentencing. That is a correct balance, both in the interests of the public and those of the offender.
I wish to refer to the provisions. Section 1 makes it clear that the Bill is not confined to reviewing sentences of imprisonment that are considered unduly lenient. Orders such as probation or community service orders are covered. So are orders postponing sentence, unless, of course, the object of the postponement is to obtain medical, psychiatric or probation officer reports for sentencing purposes. The Bill does not apply to sentences of detention required to be passed by law on accused persons found to be insane either during the court proceedings or at the time the offence was committed.
The sentences that can be reviewed under the Bill are those imposed on conviction on indictment or on persons who have pleaded guilty in the District Court to serious offences and have been sent forward for sentence to the Circuit Criminal Court or the Central Criminal Court.
Section 1 also provides that the Bill will not apply to sentences imposed on persons convicted before it comes into force. To do otherwise would be unfair to the convicted persons concerned and would almost certainly be unconstitutional.
Sections 2 and 4 deal with the procedure for initiating a review. The Director of Public Prosecutions has 28 days after a sentence is imposed to decide whether to ask the Court of Criminal Appeal to review it. It is essential that this limit should not be so short that the Director would not have enough time to consider the matter thoroughly. On the other hand, it would not be right that a convicted person, whose sentence may have been suspended, should be kept too long in a state of uncertainty as to whether or not the sentence will be reviewed, with the prospect of having to face a custodial sentence ultimately. The period of 28 days in section 2 meets both those criteria.
Section 3 provides for an appeal to the Supreme Court where it can be certified that a point of law of exceptional public importance is involved and that such an appeal is desirable in the public interest. As in the case of appeals from other decisions of the Court of Criminal Appeal, the certificate can be given by that court or by the Attorney General or the Director of Public Prosecutions. I would not expect that there would be much recourse to this provision, as a review of sentencing would be unlikely to involve any disputed questions of law. Legal aid will be provided for the convicted person for the review and for any appeal.
Section 5 enunciates an important principle to be followed when courts are sentencing for sexual offences or for offences involving violence or the threat of violence. That is, that the court should take into account the effect, including any long term effect, of the offence on the victim. At present, when an accused pleads guilty in such cases, the victim does not have to give evidence and there is no provision for formally bringing this aspect to the court's attention. Even where a trial does take place and the victim testifies, evidence of the effect of the offence on the victim is not admissible because it is irrelevant to the issue as to whether the accused committed the offence charged. Section 5 extends to sentences in both guilty and not guilty cases. This provision will lead to fewer sentences having to be reviewed under the Bill by the Court of Criminal Appeal.
People have asked how the effect on the victim is to be brought to the attention of the court. The answer is that it will be a matter for the court to decide in each case how it will discharge the obligation of informing itself. The section says that the court may, if necessary, receive representations or submissions on the issue. No doubt in many cases a report by a doctor will suffice. In other cases a court may look for evidence from the victim's family and possibly from the victim though, in the latter case, I would imagine that the court would try to avoid inflicting on her or him the trauma of giving evidence, or further evidence, as the case may be, or the court may wish to have a report from the gardaí, a social worker familiar with the case or a psychiatrist. It will be entirely a matter for the sentencing court.
I now turn to the provisions for offenders to compensate their victims. Section 6 extends the present powers of criminal courts to award compensation to all cases where the victim has been caused personal injury or loss. At present that power is available only in cases of criminal damage though, as a practical measure, courts have often had to resort to postponing sentence to enable compensation to be paid to the victim. I regard that informal method of providing compensation as quite inadequate and that is why the matter is being put on a proper statutory basis.
It is right that we should leave to the sentencing court the decision as to whether compensation should be paid, what its amount should be, what the convicted person can afford and so on. These factors will vary from case to case and the court is in the best position to make an informed judgment on them. Deputies will see that section 6 provides for a compensation order to be made for any injury or loss unless the court "sees reason to the contrary". In other words, the law will now be such that the making of a compensation order will be the norm rather than the exception. Of course, if an offender cannot pay anything, that is sufficient reason "to the contrary". However, there is provision in the section for payment of the compensation by instalments so that in most cases an offender can reasonably be required to pay an appropriate amount over a period.
Section 6 does not apply to injuries or losses caused by road accidents by insured drivers who are subsequently prosecuted. In those cases the victims are compensated by the insurance companies concerned. But it does apply to injuries or losses caused by uninsured drivers, whether or not compensation is payable by the Motor Insurers' Bureau of Ireland or the criminal injuries compensation scheme. Moreover, if a car is taken without the owner's permission and damaged, it will be presumed for this purpose that the person who took it caused the damage, whether he did so or not, so that he can be made to pay compensation for it. I think the House will agree that these are reasonable provisions in a situation where uninsured driving and car-taking are all too prevalent.
The section also provides that both the convicted person and the victim will have an equal right to apply to have the compensation order reviewed where there has been a substantial reduction, or increase as the case may be, in the convicted person's means. There are provisions for an appeal by the convicted person against the compensation order and about the effect on the order of any civil proceedings taken by the victim.
I referred earlier to changes as compared with the 1992 Bill. The most important of these is section 7. Under the 1992 Bill compensation was payable by the offender directly to the victim. If there was default in payment, the victim would have to institute court proceedings to enforce the order. The House will agree that it would be most undesirable that there should be any further contact between an offender and the victim of the offence, especially in physical or sexual abuse cases and also where payments would be ordered to be made regularly over a period. That would only serve to increase the trauma the victim would have experienced. As regards enforcement, I doubt if many victims would in fact be willing to pursue reluctant payers through the courts.
Section 7 provides that all payments of compensation are to be made through the local District Court clerk and that it will be the District Court clerk who will, on request, take proceedings to enforce payment under the order in his or her own name.
A further amendment to the 1992 Bill is contained in section 11. The background to this section is as follows. As Deputies are aware, the Criminal Evidence Act, 1992, made provision for making it easier for victims of physical or sexual abuse to give evidence. It did this by allowing evidence to be given through a live televison link at the preliminary examination and enabling a video recording of the evidence to be admissible at the trial. However, it was suggested recently that a technical amendment may be necessary to the Criminal Procedure Act, 1967, to remove any doubt as to whether a written deposition should also be taken in those cases. That is the effect of section 11. As Deputies will appreciate a written deposition is unnecessary when a video recording is available.
I should say that video link equipment has been installed in the Four Courts and a witness room and waiting room have been provided. I have brought into operation the provisions of the Act allowing evidence to be given by TV link at trials in the Dublin Circuit Criminal Court and the Central Criminal Court. When this Bill becomes law, I will bring into operation other provisions so far as they relate to preliminary examinations in the Dublin District Court.
I propose on Committee Stage to move an amendment which will increase the maximum sentence which may be imposed for incest involving a girl of 15 years or over. At present, the sentence is seven years, as provided in the Punishment of Incest Act, 1908. It is time this limit was increased as it is clearly inadequate to punish serious and repeated instances of this despicable offence. I tend to the view that the sentence should be of the order of 15 to 20 years. I should like to hear the views of Deputies on what the new maximum sentence should be. I can assure the House that those views will be fully taken into account before the amendment is tabled.
I hope the Bill will be found acceptable in principle by all sides of the House. I believe its provisions are in accordance with the obligation imposed on the State by Article 40.3.2º of the Constitution, that is, to vindicate by its laws, in the case of injustice done, the life, person, good name and property rights of every citizen. I wish to assure Deputies that I will be open to any suggestions they may make for the improvement of the Bill during the course of the debate both on this Stage and on Committee Stage. Ba mhaith liom arís mo bhuíochas a gabháil leis an Teachtaí ar chuile thaoibh den Teach a thug cúnamh agus a cho-oibrigh linn le go dtógfaimid an Bille tábhactach seo chomh tápa sin inniu, I commend the Bill to the House.