Criminal Justice Bill, 1993: Second Stage.

Minister for Justice (Mrs. Geoghegan-Quinn)

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.

Mr. Shatter

I welcome the fact that the Bill has been brought before the House today, but I am afraid I have to say that what we are doing today is yet another example of what can best be described as the appalling way in which we deal with parliamentary democracy in this country. I welcome the Fianna Fáil Party's belated conversion to the need for this legislation. I cannot but look with a cynical eye at the sudden recognition of the need for speed to address an issue which has been crying out to be addressed for a number of years. Suffice it to say that when on 8 May my colleague, Deputy Jim O'Keeffe, the then Fine Gael spokesperson on Justice, moved a Bill which provided for appeals against unduly lenient sentences — he sought in that Bill to give powers to the Director of Public Prosecutions to initiate such appeals — it received the same knee-jerk reaction from the Government of the day, a Fianna Fáil-Progressive Democrats Coalition, which most Opposition Bills get and it voted against it.

The then Minister for Justice, ably supported by the Minister of State, Deputy O'Dea, came into the House and listed a series of spurious objections to that measure and two weeks later, on 16 May 1990, went into the voting lobby and voted down that measure. If that Bill had been accepted on Second Stage and a constructive Committee Stage debate had been allowed to incorporate amendments which addressed worries Government Deputies had, it would have been law by the summer of 1990, the position which has arisen during the past year and which led to public outcry would not have arisen and Ministers would not have had to go through the charade of having media spotlight meetings with a number of tragic victims of sexual assault to portray a feeling of concern. If this had been done there would have been absolutely no doubt, in cases where unduly lenient sentences were imposed by the courts, about the power of the Director of Public Prosecutions to bring appeals against those sentences.

Mrs. Geoghegan-Quinn

I did not go through a charade yesterday.

Mr. Shatter

The reality is that the Minister for Justice was a Minister in the Government which voted down that Bill in 1990 and Deputy O'Dea, who is still Minister of State at the Department of Justice, helped lead the charge up the steps of the House and through the "Níl" lobby.

Mr. O'Dea

That is where one goes to vote.

Mr. Shatter

I wish to put in context this belated recognition by Fianna Fáil of the need for action. I am glad this action is now being taken. However, the issue which has undermined politics in this country and what has turned this Chamber very often into nothing more than a debating Chamber is that successive Governments have refused to acknowledge that if legislative proposals come from the Opposition side of the House they are worth taking seriously and taken on board. If a Minister is presented by an Opposition Deputy with legislation which appears to address a problem which needs to be addressed, it should not be seen as a means of politically putting down a Minister. My experience is that when a Private Members' Bill is published every Minister gets a brief from his civil servants as to what is wrong with it, and most Ministers run with such briefs. Fortunately, on two occasions battles were fought in this House which resulted in two Private Members' Bills in which I was involved being successful. It is a tragedy that the Bill Fine Gael brought before this House in 1990 to address this issue was not acceptable to the Government and not enacted into law. If it had been enacted into law the necessary legal mechanisms to address those issues would have been available in the cases which have caused so much concern over the past 12 months.

This Bill addresses the issue of unduly lenient sentences and largely incorporates the Fine Gael proposals. This Bill is initially a product of the sad and tragic case involving Lavinia Kerwick and the publicity which arose from the decision in that case. During the summer following that case I again called for legislation in this area and told the then Minister for Justice that if he did not introduce such legislation Fine Gael would again bring a Bill before the House in the autumn to try to achieve what my colleague, Deputy Jim O'Keeffe, had been unsuccessful in achieving because of the obduracy of the Government. The Bill to which the Minister referred was an 1992 Bill which was never debated in the House.

This Bill, in dealing with the issue of unduly lenient sentences, is addressing a problem which needs to be addressed but is only part of a problem. What we need is a criminal justice system which is victim orientated. For far too long the victims of sexual and violent crime have been ignored. They are seen as sorts of adjuncts to the criminal justice system. They are called to give evidence in court and little regard has been paid in the past to the suffering they have experienced and little support has been made available to them either before or after court proceedings to help them come to terms with the trauma they have suffered. That trauma is not just the crime of which they are the victim; it is often as traumatic for a victim to appear in court and give evidence in circumstances with which they are unfamiliar as was the original offence to which they were subjected.

I am calling for a victim orientated system of criminal justice. We need a charter for the victims of crime which will set out their rights and entitlements. We need to realise that we have to stop simply paying lip service to the victims of crime. Greater financial support should be provided to the Irish Association of Victim Support. This year's budget appears to allocate to the Rape Crisis Centre no larger sum than it received last year. This centre is crying out for additional funds. It is not enough to provide for appeals against unduly lenient sentences; there is a need to provide a far greater support base for the organisations which seek to help the victims of serious sexual and other violent crimes. Within the last 48 hours the spokesperson for the Rape Crisis Centre highlighted this issue. An article in the Irish Independent on Monday, 8 March, states that the Dublin Rape Crisis Centre has accused the Government of hypocrisy in the wake of the Kilkenny incest case and that it was appalled that the centre had not received an increase in funds in the budget. I similarly accuse the Government of hypocrisy in that while there may be funding it is inadequate.

When talking about the perpetrators of sexual crime there are two problems which need to be addressed. The first is to ensure that the sentences imposed reflect the gravity of the crimes committed by the perpetrators. The second is to ensure that somebody convicted of rape, sexual assault or incest is not a human sexual exocet waiting to be released from gaol to pose a threat to the original victims when he is back in the community. The former Government reneged on its obligations in respect of that problem. There was a service in Arbour Hill to deal with the personality problems and psychological difficulties experienced by perpetrators of sexual crime so as to ensure that they would come to terms with the enormity of what they had done and would not pose a threat to the public in general or the specific people who had been their victims once released from prison. Under the former Government this experimental scheme was brought to a halt. A similar scheme is not currently in existence. I can remember the then Minister for Justice, Pádraic Flynn, promising the nation on the "Late Late Show" that he would tackle this problem. When I raised the matter by way of Dáil question last October I was told that another committee was looking at the matter.

In the week that this Government has finally realised the urgent need to bring legislation before this House, it is instructive to refer to a report in yesterday's edition of The Irish Times of another case of sexual assault and rape before the Central Criminal Court. The report states:

The absence of treatment and counselling programmes for sex offenders in Irish prisons has been criticised by a Central Criminal Court judge.

Mr. Justice Flood told the court yesterday: "Sex offenders are just placed in prison and left to rot. Then they are tipped out onto the public again."

According to the report, the court was told by a senior probation officer for the Limerick area that the only suitable programme geared to the treatment of sex offenders was at the Gracewell Clinic in Birmingham. Nowhere in this State do we have any suitable and proper programme for sex offenders.

An Ceann Comhairle

I would much prefer if you did not refer to a particular judge or his rulings.

Mr. Shatter

With respect, I am entitled to refer to a judicial comment on a case which is completed.

An Ceann Comhairle

The Deputy is obviously entitled to refer to sentencing policy in a debate on this measure, but I have to deprecate references to the Judiciary or their actions and rulings. I believe it should not be discussed. There is a longstanding ruling of the Chair——

Mr. Shatter

I am not criticising the Judiciary; I am agreeing with them.

An Ceann Comhairle

——that members of the Judiciary are independent by virtue of the Constitution and may not be criticised in this House.

Mr. Shatter

I am not criticising them. I was agreeing with the judge, if you would deign to listen to me.

An Ceann Comhairle

While the Deputy may compliment, others may criticise. I should prefer no reference to be made.

Mr. Shatter

That is a nonsensical ruling, with due respect.

An Ceann Comhairle

No. It is a longstanding ruling of this House.

Mr. Shatter

Not in this context. With respect, Sir, you misunderstand what I am saying. In the context of that case, the trial judge was apparently told that the Government has plans to do something about the area and he greeted that with the same cynicism as most people would by saying he had heard of such Government plans before but that nothing is available and it is an extremely serious predicament.

If the Minister is serious about addressing the problems encountered by the victims of crime and sexual abuse, it is a matter of immediate necessity to put in place within the prison system a proper programme to counsel and deal with the perpetrators of sexual violence to ensure that on release they will not re-offend.

Many of us watched with great distress the televised interview conducted last week with the tragic victim of the Kilkenny case. Some of the things she said have been said by other victims of sexual violence. I refer particularly to her fear that following the release of her father from prison he would return to persecute her and the fear, shared by her and her mother, deriving from the underlying threat they believed to be there. Although a term of imprisonment has been imposed in that case and in other cases, the living nightmare of victims of sexual offences is that following the completion of terms of imprisonment the people who assaulted them will one day stand outside their front door and wait for them. Nobody in this House should fail to acknowledge the reality of that fear. One of the tragedies is the number of victims of sexual assault who do not report to the Garda or will not go to court because of that fear. They are afraid that if they give evidence in open court the offender, even if convicted, will one day come back and pose a risk to their life and safety and that they could again be victims of sexual assault.

This Bill could address that issue, but it does not. When judges are passing sentence on the perpetrators of sexual or other types of assault the court should have available powers to make orders injuncting or barring the convicted person from attending at or near the place where the victim resides or works and from making contact of any kind with the victim of the assault. Such provision is not contained in this Bill. The court should be given those powers so that the victim of sexual assault will not have to live through a daily nightmare of fear waiting for the release of the offender from prison, facing the prospect of having to take legal action in a different forum to keep the perpetrator of the assault away. In order to obtain such an injunction the victim would have to relive in court the events which resulted in the imprisonment of the offender. The courts have not that general power and I believe it should be given to them.

The Minister has said a great deal about the courts in the context of consistency of sentences. I agree that we cannot ensure that exactly the same sentence will be imposed in every case, because there are varying circumstances. There is widespread public concern about lack of consistency, which seems to come to the forefront most often in the area of sexual crimes committed against women. It may be the case that some members of the Judiciary are not always aware of the enormity of being the victim of a sexual crime. Perhaps in the past the full psychological consequences for the victim have not been fully understood. I suspect that they are better understood now than they used to be.

The State plays a rather odd role in Ireland and England in the prosecution of crime. The role of the State Counsel is to present the evidence to the court to allow the court to determine whether a person is guilty or innocent. Once the verdict of guilty has been brought in by a jury or determined by a judge, the representative of the State stands back and has no function in asking for a particular sentence to be imposed. It is for the judge to determine the sentence and he usually does so having heard pleas for mercy on behalf of the perpetrator. The victim is rarely heard. On occasions in this House we are critical of the Judiciary, but when a judge does something worthy of praise it should also be noted. It was Mr. Justice Budd in the Central Criminal Court who during 1992 started the practice of asking the authorities to make available to him, before handing down sentence, a report as to the impact a sexual or physical assault had had on the victim of a crime. In the context of this legislation it is intended that that type of information be made available to the court.

I would ask the Minister to look at a number of areas. There is a considerable case to be made for allowing a victim who so wishes to be represented before the court on the issue of sentencing following a conviction, for allowing a victim of sexual assault to have her own lawyer make a plea to the court as to the severity of sentence that should be imposed and make available to the court information about the impact the crime had on the victim. There would then be what I would describe as an equality of justice. There would be the plea for mercy, based on the description of the special circumstances attendant on the perpetrator, that is always made on behalf of someone found guilty of a crime to try to get the court to impose a less harsh sentence. The judge would also hear, very explicitly, the other side — the plea for a harsh sentence and the reasons it should be imposed. Then the judge can make a decision. Too frequently judges find themselves making decisions on sentencing having heard only a plea that a lesser sentence than the maximum be imposed, because the State steps aside at that point. It may be right that the State should step aside, but it means that the victim's position is unpresented. I think the victim's position should be presented and that we should look very seriously at providing legal advice to the victims of crime, particularly in the context of sentencing pleas.

This legislation is also designed to allow for compensation orders to be made. It was last summer, when the Lavinia Kerwick case got so much publicity, that I sought such legislation and, again, this is why the 1992 Bill was published. I can recall, Sir, that when the Criminal Damage Bill was before this House amendments were proposed to that Bill by my colleague, Deputy Seán Barrett, in which he sought to allow the courts to provide for compensation for the victims of assault who had suffered injury and, again, those amendments were voted down by the Government. The view was that in criminal trials the courts should be allowed to order compensation in the context of property damage but not when people were damaged, that that should be left to a separate civil action.

Again this is an example of an Opposition party bring forward a constructive proposal about which there should have been no political conflict, about which there is no ideological divide in this House; but there was a policy decision made by the last Government that there should not be provision made at the end of criminal trials for compensation orders in favour of the victims of violence. That was a political policy decision.

Mr. O'Dea

That is not true.

Mr. Shatter

I am glad, Sir, that that political decision is now reversed, but it should not have required the Lavinia Kerwick case for this legislation to be recognised as necessary.

That is only a quarter of the problem. I have said that we need a victim orientated system of criminal justice and the Minister quite correctly — and I agree with what she said — made the point that there will be cases where clearly compensation orders can be made but that there will be many cases where compensation orders cannot be made because the perpetrators of crimes of violence will not have funds, will not have assets and will not be people of means. If we are to have a victim orientated criminal justice system we should restore to the criminal injuries compensation board powers to make compensation awards in favour of the victims of the violent crimes.

Mr. O'Dea

The Deputy's party removed that.

Mr. Shatter

It is something that is badly needed. It is my view, and has always been my view, that it was a mistake to take away that power from the criminal injuries compensation board when it originally had it; and it is a mistake that should be corrected. The victim support groups and a number of other groups have all asked that the criminal injuries compensation board be again empowered to make compensation awards in favour of the victims of crime. I would take the view that where the perpetrator of a crime clearly has sufficient funds to be able to pay compensation, that is where the prime responsibility should lie. However, if the perpetrator does not have funds then, for a very small financial allocation in the Government Estimates, we could again empower the criminal injuries compensation board to make such compensation orders. Who in the country would argue that the victim of the Kilkenny case or any other victim of sexual or violent assault should not be entitled to receive such compensation? I do not believe there is anybody who would disagree with that.

When I say we need a victim orientated system of criminal justice I mean that we need to recognise, first, the need for a charter for the victims of crime; second, the need to put in place proper provisions to ensure the victims of sexual and violent assaults can receive compensation payments; and third, the need for a proper support system to ensure that those who are victims are given the social supports and help they require. We need to put in place a system that will ensure that a victim who gives evidence in court does not become a victim again at a later stage when the person convicted of the offence is released. We need to ensure that those who give evidence on behalf of the State in cases of sexual and violent assault do not themselves become the victims of fear, that they do not become people hidden in their homes behind drawn curtains, afraid to go out on the streets the day after the person convicted of assaulting them is released from jail. We must release the victims of crime from the fear of being again attacked by the perpetrators of crime. We must support more seriously groups like the Irish Association of Victim Support and the rape crisis centres.

I welcome the fact that this Bill is being taken today and that we are taking Committee and remaining Stages tomorrow. I hope the Minister will participate in that. I look forward to her reaction to constructive criticisms that might be made of this Bill by the Opposition. I would hope that the Minister will be amenable to taking on board amendments that may be proposed by the Opposition parties.

Mrs. Geoghegan-Quinn

The Minister is always amenable.

Mr. Shatter

This Bill does not address the provisions contained in the Punishment of Incest Act, 1908, under which the maximum sentence that can be imposed for incest is seven years. It was that issue that gave rise to so much controversy in the Kilkenny case of last week. In response to that case and the legal anomaly contained in the 1908 Act, I, on behalf of Fine Gael, published a Private Members' Bill on Wednesday last which sought to amend the Punishment of Incest Act, 1908, and to extend the maximum sentence that the courts could impose for the offence of incest from seven years to 20 years. It was after that Bill was published that the Government indicated that it now recognised the need to provide for a longer sentence. I welcome the fact that the Minister has said that she is prepared to amend this Bill to make that provision.

It would be my view, Sir, in the light of the horrors that unfolded in the Kilkenny case, that judges should be given a very broad and wide discussion in the context of imposing very harsh sentences in cases that warrant them. It would be my view that, except in very exceptional circumstances, the crime of incest should always warrant the imposition of a very harsh sentence, because it is a particularly evil crime. It is particularly evil because the victims of that crime are the daughters of the perpetrators of that crime. The victims are very often under the control of the perpetrators and the person who perpetrates it is abusing a parental responsibility in a manner that to many of us in this House is almost unintelligible. People put in a position of trust who so abuse that trust very often, effectively, permanently destroy the future lives of their own children.

As a public representative and also wearing my hat as an occasional lawyer working in the area of family law, I have frequently met adults whose marriages and personal relationships have been a disaster because of sexual crimes such as incest perpetrated against them in their childhood, emerging to create in adult life enormous psychological problems and mental trauma. Very often the victims of incest have their lives destroyed, they never come to terms with what happened to them in their childhood. In my view the maximum sentence should be increased to a period of up to 20 years. That would not mean that a 20 year sentence would be imposed in every case. If this matter was not being addressed in the House today and tomorrow the Fine Gael Party would have, at the first available opportunity, introduced and sought to have enacted its Private Members' Bill.

Due to the enormity of the issue, the seriousness attached to it, and because it is my understanding that there are other cases of this nature pending which may come before the courts in the next 12 to 18 months, we should make sure that this legislation is put on the Statute Book rapidly. I am concerned that the Bill will not be taken in the Seanad next week because, as I understand it, the Seanad will not be sitting. I am concerned that the Bill, having gone through the House, should not sit on a shelf for weeks before becoming law.

I hope the Minister will acknowledge that the Bill published last week on behalf of Fine Gael was one that sought to address in a very speedy way an issue of great seriousness. Certainly, it is the hope of Fine Gael that the Minister will take on board one suggestion about the maximum sentence.

Arising out of the manner in which the Bill has come before the House, and the circumstances of the two cases to which I referred, many Irish women will be watching the way the House operates today. Many men, too, who are equally concerned about this issue, will follow today's proceedings closely.

Unfortunately, we are dealing with only part of the problem. All the other issues to which I referred need to be examined also. Within our prison service we need to put in place the kind of treatment programme that is so badly needed and that the Judiciary cries out for. On occasions we criticise the Judiciary for mistakes made but too often we are blind to the failures of the Government that make the work of the Judiciary difficult and very often make the position of the victims of crime impossible.

The Bill has several technical problems and in the time available to debate Second Stage I have not had an opportunity to deal with those problems in detail. I look forward to an opportunity to do so on Committee Stage.

Miss Harney

I welcome the Bill and compliment the Minister on bringing it forward so soon in the life of this Dáil. I was not as keen as the Minister to have the Bill debated at 4 o'clock yesterday afternoon but I am pleased that the debate is taking place today and that all Stages of the Bill will pass tomorrow. In principle, I do not agree to the practice of rushing through legislation in that way because it has been my experience that legislation not adequately dealt with in the House, particularly on occasions when there is no gap between Second Stage and Committee Stage, often comes back in a short time to be changed. The Minister, and the Minister of State, acknowledge that point.

I welcome the three main provisions of the Bill: first, to give the Director of Public Prosecutions the power to appeal what are regarded as unduly lenient sentences; second, to have the court take into account the effects, long term and otherwise, on the victim of a crime that relates to a sexual offence or violence or the threat of violence and, third, the payment of compensation. Those provisions are a great addition to our criminal law.

I am rather amused at the content of the Bill because of the attitude by the Government to another Bill before the House. This Bill mirrors almost identically the provisions of the British Criminal Justice Act, 1988. Other than the power being given to the Attorney General in Britain, as opposed to the Director of Public Prosecutions here, section 36 of the British Criminal Justice Act, 1988, is reproduced almost entirely in this Bill. I express amusement at this because one of the Government criticisms of my Bill is that since it comes from the British Public Order Act it is a bit exaggerated, rather unnecessary and emergency type legislation. Legislation passed in Britain is not necessarily wrong and, as Ireland does have a similar judicial system to that of Britain, and as most of our criminal law was on the Statute Book before Independence, it is appropriate that from time to time we take on board many of the very fine provisions implemented in Britain, often 20 years before being implemented here.

I am concerned that when a case that could be regarded as exceptional and sensational comes to public attention there is often an automatic demand from the public, and the House, for new laws, new procedures or a new regime to put them right but after a couple of months everything goes back to normal and the need for change is almost forgotten until a similar case is brought to our attention. We can all recall cases, whether it is the case of Anne Lovett, the Lavinia Kerwick case of last year or the recent one. They all provoked a great sense of public outrage. As a people we are compassionate and abhor such crimes. On the one hand we feel a sense of guilt and on the other hand we feel hopeless and powerless to do anything about them. Most ordinary people want to do something about those crimes and want to ensure that our justice system has in place the mechanism necessary to deal with them.

A two-pronged approach needs to be taken in dealing with such crimes. First, we need to deal with them in a fire brigade way by amending the legislation to make sure it is appropriate and that a just sentence can be imposed on those guilty of serious offences. That is extremely important. It is equally important to take a slow, more painful and longer term view about these matters in our society. They are very common and for so long have been swept under the carpet. People have been frightened to talk about these matters even to their nearest and dearest. Four or five years ago a friend, someone I have known for many years, told me she was the victim of incest. I regard that woman as a close personal friend yet it was only in recent years — she is now in her late thirties — that she felt able to tell me of her trauma. She felt she could not tell anyone about this matter. Her husband did not know about it nor did her close friends who had grown up with her through their teenage years. I found it astonishing that my friend, a very intelligent and well educated woman, was for many years the victim of dreadful incest by her father.

We need to have put in place a mechanism that gives confidence, care and support to women like my friend and people who come from probably more deprived circumstances than her and who might be further removed from the realm from which help could be forthcoming.

The most important person in all these matters is not necessarily the guilty party — and I shall deal later with the way society must deal with those who are guilty — but is, as Deputy Shatter said, the victim of the crime. Unfortunately, because of the adversarial nature of our criminal justice system the victim is placed very much at the bottom of the heap. All too rarely are the victim's concerns and perception and the effects on the victim taken into account.

I have a suggestion to put to the Minister, whom I recognise as a reforming Minister and one who has for many years had a deep concern about these issues.

The Minister was concerned about these issues a long time before she was appointed to the Department of Justice and I am delighted she has responsibility for that Department. My suggestion is that we put in place a mechanism composed of a combination of the services of the Garda Síochána and the caring services of social workers and psychologists. That mechanism could be an informal, ad hoc group, but it should be a well-known facility that people would have confidence to call on, knowing that they would receive the protection of the service, the assistance required and, if necessary, be taken out of dreadful circumstances. I can think of no better person to be involved in this service than Garda Agnes Reddy. Were it not for her this legislation might not be before the House today. Garda Reddy was the garda responsible for bringing both the Lavinia Kerwick case and the more recent case before the courts. I complimented Garda Reddy last week and I know that the Minister, and others, have done so. We cannot do that often enough. More fine examples such as those given by Garda Reddy are needed. It is interesting that it was a women garda who took the time and patience to gain the confidence of the victim to tell her story so that a case could be prepared, something that is not easy.

I compliment the media on bringing these cases to our attention. The media need to tread very carefully when dealing with the victims of crime. Most victims have never been in the public eye. While the anonymity of victims may be protected in a national sense it must be recognised that we live in a small rural society. It is extremely important that their anonymity be protected because most victims have long lives ahead of them and a most awful ordeal to live with.

We must make sure that, in trying to inform the public, the first duty of any civilised and decent press is not to infringe the privacy of the victim to such an extent that people in bars, clubs and other places around the country know her identity. Perhaps before the responsible media contact the victim they would talk to the member of the Garda Síochána handling the case, a social worker, or take independent advice, because they, too, have a big responsibility.

Many people who come through ordeals like that are so shell-shocked immediately after the case that perhaps they make decisions in terms of publicity which they may regret aferwards, even though they do an enormous service to us and the public at large and help the process for reform and judicial fairness. In regard to the media there is a tendency — sometimes the only sin relates to sex — to think that the only crime relates to rape, incest or matters to do with sex. However, there are many other cases in which an inappropriate sentence is imposed and they do not receive the same kind of attention which is given to cases concerned with sex. Recently two persons were convicted of stealing £100,000 and the sentence was something in the region of six months, which I thought was very lenient. The Fr. Molloy case is another example.

I was interested to see that the ICA believe that about one-third of women in Ireland have been the victim of incest. If that is true it is horrific, indeed it is a problem of devastating proportions and amending the law will not deal with the social problems. We need to put in place mechanisms through the educational system, health services and the other normal support services in the community to make sure that we deal adequately with the problem by way of the resources we give to solving it. Deputy Shattter referred to the Rape Crisis Centre. I received a copy of the press release and they are appalled and feel there is a certain sense of dishonesty in showing concern on the one hand at particular sentencing and not giving enough resources on the other to those who do outstanding work to help the victims of these crimes.

In any decent system of justice it is very important to take great care in dealing with the people convicted of serious crimes. In various societies value systems are different and people have a different way of dealing with the victims of crime. Sometimes we look at communities in other countries and are appalled at how they deal with victims of a particular crime. That is why I am happy that the Government of which I was a member got rid of capital punishment although most of us acknowledged it would never be used. As a penalty it was inappropriate and in a civilised society one does not use penalties of that kind. It is terribly important, particularly when there is a great demand, which I share and will push forward as much as I can, for tougher sentences, to deal with the many loopholes in the law and to codify and update it. The law is so out of date, particularly when there is a demand for tough sentences; we must make it easier to get convictions and improve the mechanisms available to the Garda Síochána to help in the detection of crime.

However, it is equally important to have the proper safeguards in place to deal first with those in custody, those who are being questioned by the Garda Síochána, those serving a sentence in our penal system and, of course, the same applies to those who have suffered a miscarriage of justice. I note the commmitment in the Programme for Government to put the payment of compensation on a statutory basis. We badly need to implement the recommendations of the Martin Committee in 1990. The committee inquired into certain aspects of criminal procedure because science is not perfect and forensic science tests change over time. Advances in technology can cast a doubt on a conviction in subsequent years and we do not have the mechanism in our system of justice or a statutory basis for the payment of compensation to redress the wrong. As the Martin Committee recommended, we need to put a statutory body in place to review sentences where there is a doubt regarding a miscarriage of justice. It is extremely important to do that at the same time as we are strengthening the law to make it easier to get convictions because the two go hand in hand. It is terribly important for the protection of civil liberties and for the success of our criminal justice system that people have faith in it and particularly that convicted persons are dealt with in an appropriate way.

The Minister said she did not envisage that the appeals system will be used much. I share her view because, generally speaking, the trial judge is the person who has listened to the facts and is in the best position to impose a sentence. However, I am extremely displeased with the sentence imposed in this particular case. I do not like commenting on judicial sentencing and it is usually frowned upon by members of the Judiciary but it seems that we we do not need to change the law — and we did not need to in that case — to have a higher sentence imposed. That seems to be the pattern in so many other cases and it is unfortunate that in the area of sex-related offences and family law there is a reluctance on the part of the Judiciary to impose what I would regard as appropriate sentences. There seems to be a view that these cases are in some sense beneath the Judiciary.

We need proper training for judges. We have often heard criticism that judges come from a certain background. One would prefer if they came from a broader background but it is inevitable given what is required to be a judge and that they must have legal expertise and a legal background, that they will come from a particular background, just as politicians generally come from a certain background. It is important that there be training for members of the Judiciary, that younger members are appointed and in particular that more women are appointed. I am pleased that there is a woman member of the Supreme Court and a woman member of the High Court but there are still far too few. I want the Government to improve the ratio of women appointed to senior positions in the Judiciary.

The Minister said that the Director of Public Prosecutions has at present, in relation to appeals, powers which have never been exercised and we cannot guarantee that he will ever exercise the powers given to him in this legislation on more than very rare occasions. We need to say that because there will be a tendency to assume, when this legislation is on the Statute Book, that suddenly all will be well and that any time there is a perceived lenient approach — perceived by members of the public or politicians — the DPP will rush in and appeal a particular sentence. We must be aware of the fact that that will not happen. It may well be years before the Director of Public Prosecutions ever seeks to exercise the new powers we propose to confer on him under this legislation. I share the Minister's view that the Director of Public Prosecutions is the appropriate person. I say this because of the independent mechanism by which he is appointed in the 1974 Act. He is perceived to be more independent than the Attorney General because of the association between the Attorney General and a new Government coming into office. I do not want to question the integrity or independence of the Attorney General but in perception terms and in reality the Director of Public Prosecutions is the more appropriate person.

I see that the Minister intends to amend the 1974 Act to make it an offence to communicate with the Attorney General. The 1974 Act makes it an offence to communicate with the Director of Public Prosecutions, the Attorney General and so on in relation to taking a prosecution. This will now be amended in relation to taking an appeal. Perhaps the Minister will clarify what is meant by "communication". It does not say whether the communication will be by letter or telephone call. Would it be an offence if a Member of this House urged the DPP to appeal a case? Would it be an offence for an editor of a newspaper to suggest that because it was perceived that a sentence was unduly lenient the Director of Public Prosecutions should seek an appeal? Would that be considered an inappropriate communication? Will the Minister clarify the position?

Deputy Shatter referred to the need to restore the element of pain and suffering when the criminal injuries compensation board are considering a case. I share that view. I know it is expensive, but it is awful that somebody can be maimed or badly injured as a result of an attack on the person and not be able to get compensation. That is an awful reflection on our society. I suggest that one way of funding such a system of compensation would be to increase fines. The Minister has the power to reduce fines. When people find it difficult to pay a fine they ask their public representative to intercede with the Minister to have it reduced. I would prefer if the Minister did not have the power to reduce the fine; indeed she might even prefer not to have it herself. Having said that, however, I believe we could fund from increased fines the compensation payable to those who have suffered pain and suffering as a result of a criminal injury.

The Minister asked for our comments on the appropriate sentencing in cases of incest. I have mixed views on the length of sentences of five, ten, 15, 20 or 25 years, as I just do not know what is appropriate. I accept the Minister will make her judgment on the basis of the advice she receives. However, I am inclined to accept the view Deputy Shatter expressed, but I do not favour mandatory sentencing for cases of rape or incest. If it were introduced there would be a tendency to impose no sentence at all. As the Minister rightly said in her speech, circumstances are different and there is a difference when somebody pleads guilty. Different circumstances have to be taken into account. That is what our system of justice is about and that is why we have trial by judge and jury so that ordinary people are able to adjudicate in these matters. I say that in the knowledge that many women's organisations feel compelled to call for mandatory sentences because the sentencing policy seems to be so inconsistent. In my view, if we had mandatory sentencing in such cases there would be a tendency to lessen the charge of rape, for example, to a more minor charge in order that the mandatory sentence would not have to be imposed.

The Minister said that it is not easy to get uniformity in sentencing but that what we need is consistency. I certainly share her view. We all know of judges — this happened more so in the past — who were associated with handing down tough sentences. We know that counsel tell their clients that if they are before judge X they will get such a sentence but if they are before somebody else they will get an easier passage. I share the Minister's view on consistency between members of the Judiciary, in so far as that is practically and physically possible. I know that everybody is different, but it seems to me that there are enormous differences sometimes between the sentences imposed by one member of the Judiciary and another. I know the Minister has to be careful not to jeopardise in any way the independence of the Judiciary; but if we can find a formal mechanism to make it known to the presidents of the various courts that we want to see consistency in sentencing by different judges, we should seek it. I think a judicial system that is very much dependent on which judge you get is one that brings the system into disrepute. The well known hardened criminals around town can tell you off the top of their heads which judge they should go before.

Unfortunately, because of our adversarial system of justice the quality of justice is very dependent on the quality of representation. Without casting any reflection on members of the legal profession, let me say that all too often the best representation is given to those who can pay the biggest money, who can employ their own counsel. Because of the scale of fees — and I hate to say this because the fees are always large — and the discrepancy between what the private practitioner may be paid and the fees paid by the State through the legal aid scheme to the prosecuting counsel, I am told that many of our leading counsel will never take legal aid cases. Sometimes, therefore, the representation available is not of the same quality and the chance of getting a prosecution in some cases — this often applies in cases of rape and so on — and an appropriate sentence or a verdict of innocence or guilt does not arise.

I welcome the provision that compensation can be paid to the victim, but I think it is important that this decision is kept from the jury. The essential role of the jury is to decide on the innocence or guilt of the accused. If the element of compensation comes before the jury and is a big feature of the trial, I believe the jury would be inclined to look more to the sympathy they have for the victim rather than the guilt or innocence of the accused. It is important to realise that the essential duty of the jury is to decide on the guilt or innocence of the accused.

Will the Minister clarify whether cases that are dismissed on a technicality — unfortunately there are all too many — may be appealed? Under the Bill as proposed it is only where a penalty, either a sentence or a fine, is imposed that there can be an appeal. I know we have procedures to appeal on a point of law, but I am not talking about appeal procedures on a point of law. What provisions exist to appeal cases that are dismissed on a technicality other than the existing provisions available to the Director of Public Prosecutions? This Bill does not provide any new powers for the Director of Public Prosecutions in those cases. Will the Minister clarify that point for me, please?

So many areas of criminal law need reform that I worry when a Bill of this kind is enacted and becomes law that it will take a long number of years before major legislation in this regard comes before the House. I wish to encourage the Minister and the Minister of State to take on board the new procedure to be put in place by the establishment of the new committee to deal with legal affairs and security related matters and to bring as many Bills as possible before the House and before that committee. I encourage the Minister to bring such Bills before the committee in framework form so that such Bills can be improved upon by the committee rather than having to deal with the A to Z of what should happen. I know Ministers are never very keen to do that, but if we have to wait for the A to Z we will be waiting for donkey's years.

If the committees are to be meaningful certain powers will have to be reserved to them rather than everything having to go back to Cabinet if what is called "substantial change" is to be made. Our Cabinet system of making laws does not work. I know this from practical experience. Indeed, I know how difficult it is for a Minister to get a place on the Cabinet agenda to have a matter discussed. The paraphernalia of memoranda to Government and seeking the views of other Departments, as well as the backlog in the draftsman's office, causes huge delays; and for all those reasons the process is extremely slow. I would like to think that we would use the committee in a far more meaningful way than we have ever done before — to make legislation rather than minor or very technical amendments acceptable to Government. It would be in the interests of everybody — the Minister and the House — if that committee were to be given the clout to allow them to make the law rather than to rubberstamp the provisions that come from the Government of the day. I am not saying that the Government should not decide the overall framework of the legislation — I do not necessarily disagree with that — but it should not be necessary to seek approval on every detail. Given that the Government has such a huge majority, it will be able to do this through committee, but I am anxious that we get the Bills to the committee as quickly as possible.

We should all feel ashamed that this sort of case could happen in our society in the early nineties. Those who have brought it to our attention should be thanked and encouraged, but they should also be cautions. The victim and society in general must be protected. We must not highlight particular cases while allowing others to go unreported. We must ensure that we do not encourage a type of lynch law where there is massive public outcry because a case is presented in a certain way. When speaking to the victim, the media only hear one side of the case. We must have a sense of balance if justice is to prevail. A lynch law approach would not be appropriate, even in these extraordinary times.

I note from the Bill that it is proposed to give the Director of Public Prosecutions 28 days in which to make a decision in regard to an appeal. When will the transcript of the case be made available to the Director of Public Prosecutions to allow him and his staff assess whether or not to make an appeal? The Bill refers to the registrar sending documents to the Director of Public Prosecutions and so on, but I would like to know when the transcript will be available. Our court procedures and facilities must be updated in order to give the Director of Public Prosecutions full access to the transcript of a case before making a decision in regard to an appeal, rather than relying on media comment.

I welcome the Bill and my party will support it on Second Stage. We will table some amendments tomorrow, but it is important that it be used cautiously but, nonetheless, where necessary. I hope that the Director of Public Prosecutions will not be unwilling to instigate an appeal in cases where the facts obviously warrant a longer sentence.

Mr. Gilmore

I would like to share my time with Deputy McManus.

Acting Chairman (Mr. T. Foxe)

Is that agreed? Agreed.

Mr. Gilmore

I welcome the Bill. I welcome the provision for the DPP to appeal against unduly lenient sentences, the inclusion of the impact on the victims of sexual crimes and the compensation provisions, although I have some reservations about some of them. My party will support this Bill.

However, we must reflect on the history of the Bill. It is a product of the public outcry following the Lavinia Kerwick case. That young victim called on the public authorities to do something about the fact that the offender in that case had, effectively, got off scot free and it was discovered that the legislative framework was not in place to enable anyone to do anything about it. In fairness to the then Minister for Justice, he met with the victim and, consequently, introduced this Bill. However, it is ironic that the Bill has not come before the House for debate and enactment until a similar case occurred. Again, this case evoked a certain amount of public outcry and, consequently, this House and the Government responded quickly with the introduction of this Bill.

I have no objection to the hasty enactment of this legislation as it should have been dealt with some time ago. I do not accept the excuse that it was not dealt with earlier because of the general election and the change of Government. There was ample opportunity to deal with this legislation. This House could have sat last September, or in the month beween the election of the Government and the resumption of Dáil business, to deal with non-controversial legislation such as this which had already been circulated. This House or the other House could sit next week in order to enact this legislation. It is regrettable that it took a second highly publicised case to impress on the Government the urgency of this legislation.

Is an emergency response to specific cases the best way to reform our criminal justice system or deal with sentencing policy? Is this the proper way to deal with the problems of sexual assault, incest, rape and sexual crime generally? There is a public perception that the Dáil, through the mechanism of this legislation, is addressing the problem of sexual crime. That is not true. This legislation deals only with a minority of cases: where the case is reported, enough evidence is assembled in order to bring about a prosecution, where the case is brought before the courts and when a problem arises in regard to the length of sentence imposed. This legislation does not address the generality of sexual crime in our society.

The Irish Country Women's Association estimate that approximately one-third of Irish women are sexually abused at some time during their lives and it is clear that a large number of those sexual abuses occur within the family. A survey of 512 sexual abuse cases carried out in the Eastern Health Board area some years ago found that 20 per cent of abusers were under 15 years of age, 90 per cent were male and approximately one half were within the family circle. We all know that the vast majority of cases of sexual abuse against children and women are never reported. Victims may seek their own remedy. As a constituency politician I know women who, rather than report an incident of sexual abuse against themselves or their children and subjecting themselves and their family to the trauma of going through the courts, choose to deal with the problem by moving house, obtaining a barring order or by some other measure. Therefore, only a minority of cases go to court and we must deal with the majority of cases in some other way. I agree with Members who stated that a mechanism must be found to deal with the cases which do not go to court.

The Bill deals with sentencing policy in a narrow manner. The Minister stated this morning that the victim in the most recent Kilkenny case has, understandably, requested to be allowed to get on with her life in so far as she can do so. However, in a television interview she expressed fears about the ability to lead a normal life in anticipation of what will happen when the offender is released. Many victims of this type of crime have fears about what will happen when the offender is released.

A compartmentalised approach to this problem which deals purely with the criminal aspect of it, something that is dealt with through the courts with the offender being sentenced to a period of imprisonment and the victim being expected to carry on as normal, is not sufficient or adequate. We must consider what will happen when the offender is released from prison? Where will the offender live? Will the offender be rehoused in the same flat complex as the victim or in accommodation down the road? We need to build measures into our legislation to deal with this situation and which would require the Judiciary to do so.

On the formula being used of considering the impact on the victim, it is not simply a question of attributing some value to the impact on the victim and then saying that it is worth an extra five years in prison. That is not the approach we should adopt. I agree with Deputy Shatter's point that the victims should be represented in court and allowed make an input in the sentencing policy. However, I suspect that if we reached that stage we would find that the victims of these offences would take a more pragmatic view as to the remedy than the Judiciary. They would probably take a more wide ranging view rather than simply saying it is worth an extra five years in prison. They would address the practical problems they would have to confront when the offender is released from prison. A victim would bear in mind whether the offender would harass them on release. Is he going to live in the same neighbourhood and have access to them? Those questions need to be addressed in the context of what the victim expects.

Reference was made to the right of the Director of Public Prosecutions to appeal against what were termed unduly lenient sentences. The Director of Public Prosecutions — the Minister referred to this — has the power to appeal to the Supreme Court against sentences handed down in the Central Criminal Court but he has never exercised this right. Can we have any confidence that this right which is being given to the Director of Public Prosecutions in this legislation will be exercised having regard to the fact that the signal is being sent to that official that it is only to be exercised where what are termed as unduly lenient sentences are handed down?

We need to address to what extent sentencing policy is being decided in the courts and not in the Legislature. We are making provision in this legislation for a maximum sentence and an appeals procedure. The Minister has invited us to comment on what we consider should be the maximum sentence in relation to the crime of incest. However, we are not sending any signal to the Judiciary as to what we expect of them. The imposition of mandatory sentences for particular crimes has been suggested. I do not think that is the way to deal with the matter because effectively the sentencing policy would be like a computer programme whereby for a particular crime one could push a button to ascertain the appropriate sentence. The Legislature should lay down guidelines for sentencing and tell the Judiciary what we expect of them in relation to different crimes; where, for example, we put the crime of incest or sexual abuse in comparison with the crime of shop lifting.

During the past few weeks I have heard of people being sentenced to 20 months or two years in prison for sex offences, the term of imprisonment one would get for theft. There is no point in passing the buck to the Judiciary and then criticising judges when we are not happy with a sentence handed down. As the Legislature we should lay down the guidelines we expect the Judiciary to enforce rather than specify maximum sentences. I suggest that the committee of the House which is to deal with matters relating to justice and security policy should also deal with that problem.

The victim in the Kilkenny case has expressed her fears in relation to the post sentence situation. That issue should be reflected on because there is a view — this is a fallacy and it underlines much of what we do in this House — that prison rehabilitates people. It does nothing of the kind and any victim of crime would tell us that they fear for their own safety after an offender is released. Therefore, we need to address the failure of prison to deal with the question of rehabilitation, in particular in this case. We have to accept that convicting sex offenders and dumping them into jail does nothing to ensure that they will not offend when released. At present there are effectively no therapy or rehabilitation programmes in our prisons for sex offenders and orders made by judges that such treatment should be given are not complied with.

This matter has been highlighted in the courts on a number of occasions. In a hearing before Judge Michael Moriarty in the Circuit Criminal Court on 14 December, also an incest case, the court was told that a claim made at an earlier hearing on behalf of the Minister for Justice that the most advanced programme in the world for the treatment of recidivist sex offenders was operating in Ireland since last September was untrue. A psychiatrist at the Central Mental Hospital told the court that this type of programme did not exist. He said that 80 sex offenders were being held in Arbour Hill and that while a group therapy programme had been tried on a pilot basis for 18 months it had been abandoned in September 1990.

We also have to acknowledge that the cases of incest and sexual abuse which are highlighted in the Dáil constitute only the tip of the iceberg. We need to improve the procedures for the identification of people at risk and the prosecution of offenders. The recent report of the Second Commission on the Status of Women made a number of suggestions to assist women victims of domestic or sexual violence and they should be implemented without further delay. These include the establishment of regional domestic violence shelters where they do not exist, the securing of multi-annual funding for all such shelters, the publication by each health board of confidential addresses for women in emergency domestic violence situations and the establishment of a 24-hour telephone service in each area.

Finally, I would like to deal with the question of compensation. I am concerned about the proposition that compensation should be seen as an alternative to a prison sentence as I fear we could end up with two problems. The first is that offenders who are well off may be able to avoid a prison sentence where a compensation order is made against them. Ironically during the past week there has been much concern about whether justice is going to be evenhanded. The second problem is that if someone is the victim of an assault by a well off person they will be compensated while if they are the victim of an assault by a not so well off person they will not be compensated. I agree with the comments that funding and flexibility should be restored to the criminal injuries board in order to deal with this problem.

Acting Chairman

May I remind the House that it is not in order for the main spokespersons to share their time but since it has been agreed by the House it shall be permitted on this occasion?

Ms McManus

I welcome the Bill but I fear it is too little too late in the sense that the incidence of incest, sex abuse and domestic violence is far greater than the number of cases coming before the courts. Indeed, only a fraction of the people who commit these crimes are brought to court. One must recognise that the legislation is only as good in so far as it is available to people. The whole question of imposing heavier sentences is not a solution to the problem, although I welcome the Minister's approach in this regard. My point that the legislation is too late is one that has been made by one or two other speakers. It shows a double standard in terms of domestic violence and sexual abuse.

The Dáil was reconvened as an emergency when a crisis arose in the beef industry and Larry Goodman had to be bailed out. But since last year the question of lenient sentences has been a matter of great concern, yet it has taken another case to highlight the problem before any action was taken. That speaks volumes of the ambivalence and double standards that exist. This Bill will not be retrospective. Therefore, in the Kilkenny case there is nothing but cold comfort. There is no way the victim's difficulties can be dealt with.

The Minister said that appeals will be considered only where a sentence is seriously out of line with what a judge might be presumed to have decided, or, in relation to the Supreme Court, where a point of law of exceptional importance is applicable. I wonder how effective the legislation will be considering that there is a double standard in relation to the right of women to be safe in their homes. We live in an unequal society, and violence and sexual abuse are the cutting edge of that inequality. When considering legislation to increase sentences or to change the method of appeal we must also consider how we as a society view the whole question of domestic violence. The question is often put: why does the woman put up with violence? The question is never put: why does the man commit an act and how are we going to stop him? That is the question that needs to be answered.

It is recognised that very often victims are afraid to speak out. These people can only be compared with victims of torture, because torture is what we are talking about. When home is no longer a place of sanctuary but a place of terror and fear, a women's perception of the world at large is undermined. There is no one more lonely than the battered and abused woman. She is undermined, alienated and disorientated because of the battering. She is permanently damaged, physically, emotionally and mentally, by that experience. When she has the courage to reach out, often the system simply spurns her.

The adversarial format of the court is often inappropriate in dealing with domestic violence. How can the right of a battered women be protected when our free legal aid system has fallen apart and voluntary organisations are operating on a shoe string? These bodies are overstretched, understaffed, undertrained, underfinanced and cannot cope with demands on them. I worked in a refuge for 15 years and it is only in recent times that these centres received State funding. They have worked on the basis of goodwill and commmitment to helping people who suffer domestic violence. There has been no State support to underpin the work of these centres and to recognise that domestic violence exists and is a real crime. The Rape Crisis Centre is very concerned that people who are referred to it have to wait in a queue. It desperately wishes to provide for the need that so clearly exists.

The provisions in the Bill dealing with evidence of the offence against the victim is a good provision, but it does not recognise that very often such evidence is not available because it is not recorded. Women do not have the means of putting in place a record of abuse, particularly if that abuse has occurred over a long period. The full extent of the abuse may never be recorded unless organisations are put in place for this purpose. I was very angry that no money was allocated in the budget to deal with domestic violence and sexual abuse. This is an indication that we are not facing up to crimes committed in Irish homes every day of the week. This is a widespread and deep problem. Unless we recognise that it is a barbarity that must be dealt with, it will continue.

Much praise has been given to the garda in the Kilkenny incest case, and rightly so, but the real heroine is the victim who risked her life to come forward. It is astonishing that we can say what we like about the victim in this case, to whom my praise goes, but not about the judge. That women is a model for other women to follow. Her coming forward was a great act of courage. At the end of the day the law and the legislators have failed her.

If we do not recognise that incest and sexual abuse is a reality, this legislation will be passed without dealing with the underlying cause of the crime. What needs to be devised — I know this is not the responsibility of the Minister for Justice alone but of the Government as a whole — is a strategy that encompasses all the services dealing with domestic violence and sexual abuse. There must be a recognition of the extent of this crime. Changes must be made in sentencing, but there must also be a wide range of statutory supports not just in Dublin — we tend to see this as a Dublin problem — but throughout the country to deal with the perpetrators of violence as well as the victims. If one is separated from the other, the victim will live in fear of reprisal at a later stage.

There is need for a community organisation in this regard, because very often this crime is known to neighbours, friends, family and local people but they feel helpless and are afraid or do not know how to get involved. If we build up a consciousness among local communities that this is a crime, that it is anti-social, a barbarity that must be stamped out, we will ensure that women will not hesitate in approaching neighbours, family and friends. Very often women are afraid, for example, to go to the social worker because they may fear that their children will be taken away. In some cases the woman may wish to seek help but is afraid to go to those who can help her best. Much can be done within a community to deal with this type of crime. For instance, a publican who is aware of a person's violent record could refuse to supply another drink to a person whom he knows has enough taken. Simple things can be set in place in local communities where people are educated and understand how to resist the terrible crimes of incest and sexual abuse.

Before this case hit the headlines I spoke in this House and made a point which was sadly prophetic when I said, at column 29 of the Official Report for 26 February 1993:

The right to feel safe in one's home has to be a fundamental right. For the last 15 years I have worked with battered women, trying to provide a refuge for women who are escaping violence. I have met women who have been battered to the point where they are punch drunk and they no longer have the ability or the will to even exercise their right of choice. As long as that continues, as long as violence is used as it always has been used at the extreme end of the inequity in the relationship between men and women, that must be our first priority. Unless we tackle this problem and say it is a barbarism that must be rooted out, and it can be brought to an end only by ensuring that the perpetrators are punished appropriately, we will be responsible for perpetuating that cycle of violence.... Whatever steps are taken will do nothing for the women with whom I am dealing because they have been damaged and battered to such an extent that they will never recover from their experience but, for their daughters, it may end up being a matter of life or death.

Minister of State at the Department of Social Welfare (Ms Burton)

On this welcome Bill I will make some comments on crime against women within families and on sexual crimes within families. The most depressing thing about incest is the betrayal of trust it represents. A child who should grow and develop in a family atmosphere of love and attention is betrayed by one of the people who are supposed to care and to be in a position of authority.

Much of the study done on incest and on violent sexual crimes against women indicates, that it does not just relate to sexual gratification but that it is an attempt to express power over the victim, either the spouse or the child. It is not necessarily a sexual relationship but a power relationship. To that extent it reflects on the relations between men and women in Irish society, on the position of women and on how men feel obliged to express power over women. It is the most extreme form of the expression of power over women and children.

In many cases alcohol, and alcohol abuse, plays a huge part. I hope that will be given some attention in terms of research into the problem. We should all consider how we deal with the use of drink. Where there is a desire to express frustrated power the consumption of large quantities of alcohol seems in some cases to do away with inhibitions and these crimes are committed.

It is a good thing that part of this Bill focuses on the victim. We as a society must consider how to restore to the victim a good quality of life after such a terrible crime. In considering the improvement of professional services we must bear in mind that, because this represents a loss of power on the part of the victims, any help given to the victims should seek to re-empower the victims with regard to themselves and their place in society. The self-help groups pioneered by the Rape Crisis Centres and various other women's groups are very interesting. Here we have people with experience of this type of crime going out to help others. In that context I am glad that later today the Minister for Health will make an announcement with regard to the funding of Rape Crisis Centres. Deputy McManus regretted that this was not announced in the budget but that fact does not reflect a lack of interest.

Last September I attended a conference on crime against women run by the Department of Justice in Dublin Castle. At that conference the problem was talked about openly. I know that at this stage we seem to do a great deal of talking but in relation to breaking the silence to which Deputy McManus referred, it is necessary for women to talk about their experiences of ten years ago, 20 years ago, or 30 years ago. Growing up in Dublin I was aware of talk about crimes within families which was hushed up when I was around. I am sure that is the experience of many other Deputies. We must talk openly about this. Judge Susan Denham, who is now a judge of the Supreme Court, spoke at that conference about her experience in family courts and said that because of the in camera procedure in relation to such cases, there was a lack of awareness among the public of the number and kinds of cases with which the family courts dealt and that our education was lacking in this area. Without sensationalising such cases or breaching the confidentiality associated with them, I hope some way will be found to make us more aware of the types and number of cases which come up, about which Judge Denham spoke in September. I understand that the Department of Justice are setting in train a follow-up conference to the September conference, to be held in Templemore, and which will deal with the same matter.

In reply to Deputy McManus, the Department of Social Welfare for a number of years now has been piloting a series of initiatives in relation to locally based women's groups. While a very few of those groups deal directly with the topic of violence against women, it is through the process of self-development that many women make contacts and find themselves able to talk about what may be happening to them or what may have happened to them. In this year's budget grants to such organisations were substantially increased. The object of this is empowerment of women. If women are confident of their role and position within society the ability of others to abuse them and force them into silence will be reduced. Four or five weeks ago there was much talk about the Fitzwilliam Tennis Club and its refusal to have women members. Some of the comments made at that point were interesting because many people felt that women Deputies were being unreasonable in asking why women could not be members of Fitzwilliam Tennis Club. The point which was made then, and which is borne out again by this case, is that this was a venue at which some of the leading lawyers and judges regularly convened on a social basis. This was the social nexus in which these men met. The argument which was made at the time was that if their contacts and their socialising are confined to other men and to a certain social network, how will such judges have sympathy and understanding of victims in cases such as these.

While I would not have a punitive approach to sentencing I believe the purpose of prison is, first, to indicate society's abhorrence of a crime and, secondly, there has to be an equal commitment to attempt to rehabilitate the criminal. If we continue to have these all male bastions such as Fitzwilliam what does it say about where women in Irish society are going? In view of the fact that the majority of judges are male there is need for a greater gender balance at all levels in the Judiciary. The appointment of more women judges would lead to a greater sympathy and understanding of the problems faced by women who are victims of crime.

In regard to the Department of Social Welfare and our support for locally based women's groups, I know from my own area of Blanchardstown that the promotion of women's groups has led to a greater confidence on the part of women in talking about not only crimes against women but every aspect of their lives. That leads us on to the next stage, which is the need for more refuges, more help lines and spaces in which women can come forward and report this type of crime. I would like to see this type of development being controlled by women themselves. In other words, it is not a matter of simply offering professional advisers and professional help. That is important, but what is more important is that women in local areas come forward, having identified their own needs, and that the State, local authorities and health boards are there to support them. I know from my contacts with the Dublin Rape Crisis Centre that women who have experienced the problem are involved. This has made it more user friendly to women who wish to use the services of the centre. The same applies in the case of Women's Aid and the refuge in Rathmines. An important feature of that refuge is that there is an involvement by women who have experienced violence against women in the running of the refuge. That gives a particular quality to the services available from those centres.

In regard to the points made about an excessive legal format for the court proceedings, I should say that women's organisations have pioneered during the past 15 to 20 years an approach which is not excessively legalistic. I would welcome any development which would concentrate on counselling and mediation in addition to the judicial proceedings which arise in such a case.

On behalf of the Labour Party and on my own behalf, I note the work done by Garda Agnes Reddy in the Kilkenny case and I compliment her. In that case the victim, apparently over a number of years, attempted to draw attention to the problem. Apparently, she made contact with differenct people and different agencies, but there was no response. The victim was indeed very brave to finally come forward and confront her father in what was obviously an extremely violent family problem. The gardaí in the case behaved in a very understanding and caring way and set a headline as to how gardaí should deal with such cases in the future.

I should like to refer to the question of the length of sentences for such offenders. In that regard I should like to speak about the whole question of rehabilitation. Deputy Gilmore referred to the rehabilitation pilot scheme which is in operation in Arbour Hill. In terms of international literature, and from what I know of such centres, some are successful with some of the people who have been sentenced, but others are not. Clearly there is no easy solution to the rehabilitation of sexual offenders. Much of the literature suggests that some offenders may be addicted to that kind of behaviour. I would welcome an indication of the types of rehabilitation schemes which are successful. There are some successes. The rehabilitation schemes which have been successful in other countries involve working with the offenders over very long periods. They involve an intensive amount of therapy, whether group therapy or one to one therapy. That may appear to be the long road in dealing with such offenders and there may appear to be much shorter and sharper solutions, but I would not advocate those solutions.

As I said at the outset, much of the research indicates that the offence arises not necessarily from a desire for sexual gratification but rather from a desire to express power over others, and the rehabilitation programmes attempt to address this offence. I note Deputy McGahon does not agree with my view. In attempting to deal with these offenders we have to try to rehabilitate them. Simply feeling satisfied that we have sent somebody to jail for 15 or 20 years, and leaving the matter to rest at that, is not sufficient. The contributions which have been made this morning, particularly by women Deputies, recognise that this is a very complex problem and is not capable of instant and immediate solution. I would welcome any attempt to establish rehabilitation programmes for offenders within the prison system, difficult as those programmes are. The jury is still out on whether they are successful and if offenders have been successfully treated on such courses.

In general this is a problem which does not relate simply to justice. As a parent, I welcome the initiatives taken by the INTO in making children aware of the problems of sexual abuse and the whole programme which operates in some schools. I welcome the fact that booklets and information packs have been distributed and used in some schools. In reading some of the comments on the Kilkenny case and the interviews by the victim it was clear that for a considerable period of her life she did not understand in sexual terms what was happening to her. I hope that in any developing programmes within the schools we will try to give children the confidence to come forward if they feel that something is not right and hopefully somebody will be there to listen to them.

I would urge that we do as much as possible in our schools to educate in relation to drink. There is a strong correlation between the abuse of alcohol and the perpetration of these crimes. I welcome the action being taken by the Government in relation to this problem. However, I do not think the problem can be dealt with merely by way of legislation. The answer resides within all families and communities. The Government is tackling this problem in a number of different ways. I hope this debate will give women and children who feel they are being threatened the confidence to come forward and tell their stories.

Mr. Flanagan

I wish to share my time with Deputy McGahon.

Acting Chairman (Mr. McGrath)

Is that agreed? Agreed.

Mr. Flanagan

I am somewhat surprised that reference should be made in this debate to Fitzwilliam Lawn Tennis Club. I wish to say to the Minister of State opposite that the attitude adopted by certain quarters to Fitzwilliam Lawn Tennis Club is becoming a bore. I am not a member of Fitzwilliam Lawn Tennis Club and I do not aspire to membership of that club. I do not have anything in common with the vast majority of the members of that club. However, I respect people's right to freedom of association and to choose the company in which they wish to drink a pint of beer. The only ultimate logical conclusion one can draw from the remarks made by people like the Minister of State and others is that they wish to deny freedom of association to people, a denial of the type seen in many European Fascist dictatorships during the past century. I will leave my remarks at that. As someone who served on and contributed significantly to the work of the Joint Committee on Women's Rights from 1977-79 and in the family law area before I become a Member of this House, I am beginning to feel that this entire campaign has gone over the top and that the cause of equality is not being helped by the remarks made by the Minister of State and her fellow travellers.

(Interruptions).

Mr. Flanagan

It is somewhat regrettable that in the spring of 1993 the Minister for Justice and her Government partners have had to be almost literaly dragged screaming into this House in order to enact such a Bill as that now before us. I do not have to remind the Minister of State, Deputy O'Dea, but I might have to remind other Members, of the debate on similar legislation proposed by Fine Gael in 1990, legislation which was rejected out of hand by the Government of the day. I am glad the Progressive Democrats Party has seen the light now that it is not in Government and is prepared to vote today in favour of this Bill, which is broadly similar to the Bill it rejected for fairly flimsy reasons. I recall the contribution of, I think, Deputy Máirín Quill — perhaps it was Deputy Harney — who stated that she agreed in principle with the legislation but could not bring herself to vote for it. I am delighted that she supports this Bill now.

There is no great problem in regard to the vast majority of judgments, but I share the concern of people throughout society at the frequency of sentences which give rise to very serious concern. It was because of such concern that in 1990 Fine Gael moved a Private Members' Bill and it is precisely because of this that we have no difficulty in supporting this Bill. It is very regrettable that controversy of an extraordinary nature can blow up in our society every few months as a result of what can only be described as wrong decisions of the courts. We should acknowledge that wrong decisions are made because, like the rest of us, judges are human and fallible. It is regrettable that these mistakes can be made and it is outrageous that wrong decisions can be handed down. It is precisely because of this that we need a vehicle of the type envisaged in the legislation which will allow the Director of Public Prosecutions, if he sees fit, to make an appeal to a higher court and have a second hearing on a case. There are sound reasons why the State should be entitled to appeal a decision. After all, a person convicted has the right to appeal, if not the conviction then the severity of the sentence. We do not deny them that right; but it is only correct and proper that the same vehicle of appeal should be made available to the Director of Public Prosecutions on behalf of the State, as envisaged in the Bill. I believe there is strong public support for the Bill.

I look forward to hearing the contribution of the Minister of State, Deputy O'Dea, who made some strange remarks in his contribution on the 1990 Fine Gael Bill. He said that he disagreed with the Fine Gael Bill because it would increase the burden of work in the Office of the Director of Public Prosecutions. In other words, because the Bill would give rise to more work in the Office of the Director of Public Prosecutions we should not allow the State to appeal a lenient sentence and we should allow continue, cases like the Kilkenny incest case, the other Kilkenny case which arose last year, and the other cases which unfortunately explode into society from time to time. He used the possibility of more work in the Office of the Director of Public Prosecutions as an excuse for not supporting the Bill.

Mr. McGahon

He has made sure of that.

Mr. Flanagan

He told us that the position of the Director of Public Prosecutions would be undermined by the Bill. I should like him during his contribution on this Bill to explain his reasons for saying that and how the role of the Director of Public Prosecutions will not be undermined by this legislation. He said that the Fine Gael Bill would expose the Director of Public Prosecutions to public pressure and media campaigns and that there would be questions from Deputies to the Minister for Justice as to why certain cases had not been the subject of a review. I said at the time that I did not think that would happen and I do not think it will happen now——

Minister of State at the Department of Justice (Mr. O'Dea)

The Government has dealt with all these matters in its Bill. Fine Gael did not deal with all those matters in its Bill.

Mr. Flanagan

——because the Director of Public Prosecutions will remain independent——

Mr. O'Dea

Do not take the matter out of context.

Mr. Flanagan

——and his office will not and should not be subjected to any element of undue pressure within this House or from anywhere else.

Mr. O'Dea

Has the Deputy read the Bill?

Acting Chairman

Deputy Flanagan, without interruption please.

Mr. Flanagan

It is regrettable that Deputy O'Dea and his party rubbished in a very cynical manner the genuine proposals put forward by Fine Gael in its 1990 Bill.

Mr. O'Dea

It was rubbish.

Mr. Flanagan

Another red herring raised by as high an authority as the then Minister for Justice, Deputy Burke, was that there would be the possibility of double jeopardy, that people could not be tried twice for the same crime. We said at that time — the record is clear on this — that the question of double jeopardy was no more than a red herring. What has changed in this regard since 1990 which enables the Minister to support this legislation today?

Mr. O'Dea

Read the Bill.

Mr. Flanagan

The Bill does not make sufficient reference to the plight of the victim within the criminal justice system. I hope the Government will accord greater status to the victim within the criminal justice system. The funding given to the Irish Association of Victim Support is meagre. The victim impact study introduced in some courts is a laudable process but it is not introduced across the board; it is only referred to by individual judges in individual cases. I hope that victim impact reports can be used in all cases of a criminal nature so that some sort of inquiry can take place into how the victims are progressing or are being integrated into society after the horrific trauma they have endured in criminal cases. Consultation with the victim is important before, during and after the trial. On conviction of an offender, but before sentence is handed down, it is important that the matter of the victim be placed in perspective by the judge. It is laudable that the question of compensation for the victim is recognised in the Bill. The rights and needs of victims are extremely important. Cases are frequently adjourned or transferred to Dublin from country areas without taking into consideration the wishes of the victim. There may be evidence to suggest that there are some "easy" judges who may take a different view of a given set of criminal circumstances than a colleague.

The whole question of consistency of sentencing is important. It was stated a few years ago that meetings of High Court judges to discuss sentencing could not be held because the Department of Justice were not prepared to provide sufficient travelling expenses.

Mr. McGahon

They could meet in the Shelbourne bar.

Mr. Flanagan

That may well be the case. I welcome this long overdue Bill. The unfortunate and regrettable public outcry of last year, which was repeated in the early spring, could have been avoided if the DPP had the right to appeal a lenient sentence, a right available to the State law officer in almost every European jurisdiction but which has been denied here for far too long.

Mr. McGahon

I congratulate the Minister on bringing forward this welcome Bill which should have been produced years ago. Horrific details about incest and rape which are now becoming known reflect the break up of society. One of the good points is that these awful cases are now becoming known and people are prepared to stand up and be counted. One wonders why such cases have not been disclosed over the years. Perhaps the Catholic Church would have something to say on that. In the light of their influence on society in general and on families in particular, they must have been aware to some extent of how deeply ingrained were these problems.

The more disturbing aspect is the awful increase in crime and ineffectiveness of society in dealing with it. I am not a bleeding heart. I am not interested in analysing why people commit crime. I am only interested in punishing crime and in providing deterrents. The absence of deterrents has brought us to our present sorry state. In Dublin, gangsters control part of the city. Is that a society we can accept or be proud of? Policies emanating from the Department of Justice, regardless of who is in Government, are designed to contain and appease, not to defeat the criminal. The criminal classes can only be defeated by providing suitable deterrents. My views on this subject have been well documented over the years. Many people, particularly in the Dáil, would regard my views as extreme. I am extreme and I believe my views are echoed to a large extent by the man in the street who wants security.

Environmentalists are concerned if a river is polluted. I suggest that Irish society is polluted by the influence of television. We all like television occasionally so that we can watch rugby, football, boxing or, in my case, racing, but the incidence of violence and sex, particularly emanating from America is having a bad effect. Recent statistics show that in America a person of 18 years will have seen 26,000 murders depicted on television. That possibly accounts for the number of depraved and crazy people in that unhappy country and the level of violence there. We are importing the same programmes which are being broadcast night after night.

The Minister of State, Deputy Burton, spoke about the prevalence of alcoholic drink in society. Young children are brainwashed every ten minutes when watching television by blandishments in respect of Harp, Carlsberg, Furstenberg or whatever. They cannot get away from it because they are a captive audience in their own homes. Sex is used to sell drink in advertisements which show good-looking ladies or handsome young men. That is one of the reasons society has all but broken down.

The question of deterrents must be addressed. Draconian measures are needed to deal with full-time, hardened criminals. Recidivism is rampant. In reply to a parliamentary question last week the Minister indicated that almost 3,000 people committed offences last year while on parole. That system is clearly not working. Why continue with it? Anybody who transgresses the terms of parole should be denied it for the rest of his life. The system of bail should be examined. Any person accused of a very serious crime should be denied bail. If it is allowed, the bail should be put up by the judge. People who are charged with serious crimes should not be let loose on society until proven innocent. The whole system of bail needs to be overhauled and the system of parole absolutely abandoned.

It is high time that some emphasis was given to compensating the victims of crime. The British Prime Minister, Mr. John Major, said recently that we must have more concern for the victims of crime and less for the accused. That is a very simple and practical statement and I wonder if he will put it into effect. People in the Minister's position should also take cognisance of that simple statement. The system that has evolved here over the years is the result of the approach of the bleeding hearts and the analysts who get some kind of solace from deducing that the criminal was deprived or was abandoned by his mother. It is that kind of thinking that has helped the criminal into the commanding position he now occupies in our society.

The provision for compensation for victims is very welcome and I congratulate the Minister on incorporating it in the Bill. We pass tremendous laws in this country, we have a proliferation of laws, but do not implement them. The drink driving laws are a farce. To implement them we would need a squad car outside every public house, including the Shelbourne bar. Bringing in legislation to provide for compensation is pie in the sky, unless it is monitored and implemented. Unless there is some system whereby the person who is to pay the compensation is made to continue the payments and not welsh after the initial payments it will be no use. Many unfortunate separated or deserted wives have to contend with such a situation. The husband makes a few payments and then decides he has done enough and that the State can look after his liabilities. I would ask the Minister to ensure that some mechanism is built into the system to ensure that anybody who is required by a court to pay compensation does so.

Miss M. Wallace

The Bill covers three different areas — unduly lenient sentencing, the effect of crime on the victim and the area of compensation. We could sum this up by saying that we should lock the criminal away, hurt his pocket and always keep to the fore the appalling effect of crime on the victim.

In my book, the crimes of rape and incest equate to murder and should be treated as seriously in our legislation and in our courts. Like many Deputies I was particularly concerned about the disgracefully lenient sentencing in recent cases involving rape and incest. Society has woken up to the enormity of these crimes and the Bill is a response to this. It is necessary that the Judiciary also wake up to the viciousness of these crimes and realise that it is no longer acceptable that such crimes should be treated leniently.

It is an absurd hang-over from our inherited legal system that there has been no right to question undue leniency in sentencing. When public policy decides on penalties to fit specific crimes, we should be secure in the knowledge that these penalties will actually be imposed. Unfortunately this has not been the case and we have seen that all too often. Some cases have come to light but many never come into the public domain. There has been widespread public disquiet about lenient sentencing. The introduction of a right to appeal against lenient sentencing is long overdue and is very welcome. Society has asked us from time immemorial why the right to appeal lenient sentencing has not been there and we welcome the fact that it will at least be there for future cases.

This week a judge explained himself by saying he had had a bad week. My immediate reaction to that was that we also had last week a victim whose story came to light, a victim whose life has been ruined. The whole country has been appalled by the ruination of this girl's life, first of all in her childhood, then in her teens and her later years.

Previous speakers referred to the fact that in child sexual abuse cases particularly the children do not understand what is happening to them. They do not understand the appalling crime that is committed. They do not know what to do, who to talk to, or who to go to about it. Minister Burton spoke about the programme that is carried on in schools at the moment, mostly in the Dublin area. I heard about it too from some County Meath teachers. These programmes teach the children that it is okay to say "no" and that it is not their fault. This message is being put across in primary schools. This programme should be spread throughout the country through all the health boards to get it into the heads of children, no matter what their age, that if they are a victim of any type of abuse that it is not their fault, that it is okay to say "no" and that they should tell somebody in authority about it. It should be got across to them that, if they speak to somebody in authority about abuse and are ignored, they should speak to somebody else and somebody else again until they are listened to. The most appalling thing about incest, and child sexual abuse in particular, is that children do not understand, do not know who to talk to nor where to go when they experience it.

Similarly, in relation to rape cases we must endeavour to establish the support systems for the victims of this horrendous crime. Rape and incest equate to murder. Whilst there has been much welcome reform of the law and legal procedures relating to sexual assault victims, we should be moving in the direction of mandatory sentencing in this area. I would have no qualms about saying that a minimum sentence of life imprisonment is the only one that is appropriate. The Bill deals with the sentencing element and then moves on to deal with the element of compensation and the possibility for compensation plus a fine. Certainly it is important that provision for compensation be included. Victims can never recover from this crime; it remains with them for the rest of their lives. At least if there is compensation it will hurt the pocket of the perpetrator of the crime. For that reason the provision to compel the payment of compensation is very welcome.

Our legal system frequently puts too great an emphasis on protecting the rights of the accused person. This was said earlier by Deputy McGahon. It leaves victims without any real vindication. We must bear in mind that the person who should be vindicated is the victim. That is the person we want to support and protect. The Bill advocates three things: to lock the perpetrator away, to hurt his pocket and to keep to the fore the appalling effect on the victim that is there for life, whatever the age of the victim. I hope that the new requirements in the Bill will go some way to redressing the situation. However, the Minister must take immediate action to ensure the comprehensive and speedy implementation of the Bill. There must be definite effective action to establish a means for systematically taking victim impact statements and collecting compensation. That was also referred to earlier. Now that we have the legislation there has to be a monitoring procedure. The Minister in recent speeches highlighted the need for this and it is extremely important to put it in place.

The previous speaker talked of the necessity for suitable deterrents. We have been talking about the crime of incest, which would usually take place behind closed doors, but the crime of rape, which we have also talked about, often occurs in public places. The lack of gardaí on the streets could well have a bearing on the prevalence of the crime of rape. Deputies have often called for more gardaí to be put on the streets. Increased Garda presence has been evident recently in O'Connell Street and other areas. The bottom line is that more secretaries are required to do the office work in Garda stations and more gardaí released for duty. Gardaí need to be seen on the streets to be an effective deterrent. It is no deterrent to have gardaí in stations or driving around in cars, they have to be seen. An increased Garda presence will help reduce the number of horrendous crimes taking place on the streets.

In my view the crimes of rape and incest equate substantially to the crime of murder. That might not be the view of everyone. Until we recognise the gravity of the crimes referred to today there is need for concern. The crimes of rape and incest have a terrible effect on victims for their lives. It is appalling that the perpetrator of such a crime can be imprisoned for a few years and then be released back into society.

I realise that I should have made this request at the outset. I should like to share my time with Deputy Walsh.

Acting Chairman

Is that agreed? Agreed.

Mr. E. Walsh

I welcome the Bill. Like every Deputy, I was shocked and upset at the Kilkenny case that came to our attention. That case has upset the general public and highlighted attitudes towards the crimes of incest and rape.

The laws dealing with the crimes of incest and rape were prepared for different times. These crimes may not be new but more of them are being reported and we are required to respond. I agree that incest and rape are very serious crimes that require special sentences.

There is concern in the community at how the sentencing policies of the courts vary. The Bill attempts to bring about an organised approach to sentencing and that will be welcomed by the victims of all crimes, including the crimes of rape and incest.

It is unfortunate that the effects of crime on the victims have not been investigated in sufficient detail to give the courts, and the public, an understanding of what happens to them. I am glad the Bill deals with that problem and I hope that as a result those who complain about an inadequate response will be satisfied that it goes some way to fill the void left by inadequate sentences.

Compensation is a very important element of criminal justice. There is the question of whether a sentence is sufficient punishment for the crime. Compensation usually affects the perpetrator of a violent act and it can cause offenders a great deal of difficulty. Insisting on the payment of compensation is the best way to make some restitution to the victim. It signals that we are trying to tilt the scales of justice on the side of the victim.

The question of access to the places where crimes, such as in the Kilkenny case, are committed is very important. It seems there is some difficulty in passing on knowledge of how to gain access to places where such crimes are committed. That difficulty can be addressed in many ways. When there is evidence that crimes are being committed there should be a process for collecting the evidence.

The public will be reassured by the introduction of this legislation. The reaction to the cases that have come to public attention seems to suggest that society is beginning to identify an underlying problem that was not clear in the past. We all recognise that such activities are not new but it is good to note that the public is exposing such dreadful crimes. At this time women, in particular, need reassurance that the justice system will give them protection. We put the justice system in place to deal with and control the violent elements in our society. I hope that the contributions made on this and similar legislation will reassure women, in particular those who were the victims of terrible crimes.

Our young people are very vulnerable. We have to bear in mind that young people do not have the voice that adults have to highlight the problems that confront them. There is a need to respond to signals from very young people and those who look after them, our teachers, community workers and so on. We should try to establish a scheme to assure those who are most vulnerable, particularly young girls, that they have an avenue of approach. Young people need to feel secure in making those approaches. We need agencies to be able to respond to those who come to them in fear.

At times many communities have felt helpless in regard to these issues. The heightened public consciousness of the problem, the good will from all sides of the House, and the community should lead to a safer society for those who are suffering and the most vulnerable.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.

Dáil Éireann debate - Wednesday, 10 Mar 1993