Criminal Justice Bill, 1993: Committee Stage.

NEW SECTION.

Miss Harney

I move amendment No. 1:

In page 3, before section 1, to insert the following new section:

"1.—In any case where a sentence has been imposed by the Court consisting of imprisonment or a fine or Community Service Order any decision made by the Minister pursuant to the provisions of the Criminal Justice Act, 1951, to commute or remit such sentence or any decision to release any person from custody pursuant to the law for the time being relating to temporary release orders made under the Criminal Justice Act, 1960, shall be notified to the public by a notice published in Iris Oifigiúil stating the following matters:

(a) the name of the person in respect of whom the decision is made;

(b) the sentence imposed on such person;

(d) the extent by which the sentence was commuted or remitted, or in relation to a temporary release order the duration of any term of imprisonment actually served by the person prior to the commencement of such order.".

I am disappointed the Minister is not here for this debate. I normally would not raise a matter of this kind because it is important that Ministers represent Ireland abroad on St. Patrick's Day, but I have to raise it on this occasion because of the manner in which the Government sought to take this Bill. On Tuesday afternoon Deputy Mary Coughlan told us in the House that the Bill was very urgent and the Government wanted to take it that afternoon. The Minister for Justice seemed keen to take the Bill on Tuesday. We were told the reason was that the Minister had just met the incest victim from Kilkenny and her mother and was therefore anxious to have the Bill passed.

The Opposition kindly agreed in very unusual circumstances to take the Bill yesterday, which required spokespeople such as myself having to do considerable work in a very short period. The Minister opened the debate here yesterday, Deputy Shatter spoke next and in the middle of my speech the Minister left for Australia — she is now in Singapore. I am disgusted the Minister did not see fit to stay for at least the Second Stage debate and for this morning's Committee Stage. I say this because she told us she was going to listen carefully to the debate — unless she had special earplugs on the plane I do not know how she could have listened to the debate yesterday — and that she was going to take on board suggestions. She asked for recommendations in relation to the maximum penalty for incest.

As I have said, I normally would not raise a matter of this kind and I am not doing so in any sense for cheap publicity but because I genuinely believe it was wrong of the Minister, in the circumstances in which she sought to bring forward this Bill, to stick to her original arrangements. Although the Minister changed her arrangements from an Aer Lingus flight to use the Government jet, otherwise she stuck to her timescale and I am very disappointed she has chosen to do so when we are discussing this very important legislation.

The purpose of the amendment in my name — this applies principally to fines — is that when a fine is considered by the person on whom it is imposed to be unreasonable the person is normally told by members of the Garda Síochána and others that one way of seeking to have the penalty reduced is to go to their local politician who can lobby the Minister for Justice who has the power to reduce or totally abolish fines, community service orders or whatever. All of us have made representations, which we are obliged to do, on behalf of constituents, although I have never done so except where I believed there was a legitimate case for making such representation.

This is a power the Minister should not have. The Minister has been critical of lenient sentences, as have all politicians. It seems ironic that in the context of passing judgment on particular sentences this power should be reserved in political hands. It is not appropriate that the Minister should have that power, but rather than abolish it altogether, which would not be in order in the context of this Bill, I propose to take some pressure from the Minister and at the same time allow the public to be able to assess the impact of this power, the way it is being used and what exactly particular Ministers do in relation to the power they have. The courts can impose a fine or an appeal can be made and a new sentence imposed but if the Minister keeps the power to reduce or abolish a sentence, a fine, or community service order, that is a little strange. I suggest that where the power is used, the name and address of the person in respect of whom the decision is made should be published in Iris Oifigiúil along with the sentence imposed, the offence or offences for which the penalty is imposed and the extent to which the sentence was commuted or remitted or, in relation to a temporary release order, the duration of the term of imprisonment served prior to the commencement of such an order.

This is a reasonable amendment which will allow the public to have the kind of information that would make us better informed about the impact of sentencing policy and what happens in reality. In the context of framing legislation and updating the law, it will allow politicians to be fully informed. If the Programme for Government is to be implemented, the criminal law will be subject to major reform which is long overdue. A Deputy yesterday raised a question as to how much information we have about sentences and he wondered if anybody ever did adequate research on the nature of sentences over any period. My amendment would make a contribution towards research in that area and that would be extremely useful. For all those reasons I hope the Minister of State will be in a position to accept this reasonable amendment.

Deputy Gilmore on 2 March asked a question in the Dáil in relation to those who had received a temporary release during the Christmas period and he was informed that an extensive list of people received temporary release. I am not opposed to the principle because, as far as possible, people should be free to be with their families and loved ones on Christmas Day. However, it seems that people serving long sentences of from four to seven years for robbery whose release date would be 1995 after a normal remission which is about one-third of the sentence, obtained a temporary release. I do not know on what basis that occurred. Obviously families lobbied and the governor of the institution has a huge say in it, but very often there is also a political decision. There is much disquiet in the community about it. Yesterday in a parliamentary reply we were told that last year the number of people out on bail who committed further crimes was almost 3,000. The public are entitled to as much information as possible.

To be fair to the courts, it is wrong to criticise lenient decisions if Ministers are constantly reducing the penalties imposed by the courts. Many judges, the Garda Síochána and other practitioners of the law feel very aggrieved that politicians can get away with using this power, because it is used quietly behind closed doors so that nobody ever really knows about it or on what basis decisions are made. I will not delay the House because we have a short Committee Stage and we want to get through as many of these amendments as possible. I would ask the Minister to accept the amendment which is reasonable in the circumstances.

Mr. Shatter

I agree with Deputy Harney that this Bill together with all the provisions we are dealing with in relation to the Bill are of importance. Indeed, it is legislation that could have been passed three years ago if the Government had accepted a Fine Gael Private Members' Bill.

Originally, we were to take Second Stage of this Bill on Friday and it was represented to us that the Minister had a deep concern about this issue. I wish to see this Bill passed through the House speedily. I welcome that, because of the undue delay by the Government in even acknowledging the need for this legislation. It is appalling in the area of priorities that the Minister is not here today to take this Bill. It is appalling that she should leave the country to go to Australia when we are taking all Stages of the Bill today and when she could have equally gone on the designated trip tomorrow.

Since the Fine Gael Private Members' Bill was published by me a week ago to increase the maximum sentence for incest from seven to 20 years, the Minister has being doing a seven day a week public relations exercise to portray her concern in the media. Without acknowledging the importance of the Fine Gael Bill, she made a presentation as if it was a Government initiative and we now see at the later section that the Fine Gael proposal to increase the maximum sentence to 20 years has been accepted by the Government. If the Minister was concerned about this Bill, about getting it right and amending it properly and ensuring that it would work, she would be here in the House today. Being a Minister and a legislator is not just about public relations exercises, it is about being in this House doing the real work that must be done in ensuring that legislation put through the House is correct.

I will be interested in the responses of the Minister of State to amendments today to see whether he has the authority to take on board any of the amendments tabled by the Opposition or whether he will have to kick to touch on all of them on the basis of promising that they will be re-examined when the Bill goes to the Seanad, presumably because before the Bill goes to the Seanad the Minister will be back in this country. It is simply not good enough.

In relation to Deputy Harney's proposal, there is some merit in it. Deputy Harney has made the case for it and like her, I will not unduly delay the House because there are a lot of amendments we need to discuss. However, there is one aspect of relevance to her amendment which she has not addressed which highlights to some extent the hypocrisy of the Government in dealing with criminal justice. It is agreed across the House now that there is need for appeals against unduly lenient sentences. That is based on the assumption that when people commit serious crime there will be a sentence commensurate with the crime, imposed by the courts, and that when on occasions judges act inconsistently there should be the possibility of appealing to the higher courts. There is an assumption that when sentences are imposed they will be served fully. The problem is that when sentences are currently handed down, very often the sentences are not fully served because we do not have sufficient capacity in our prisons to keep people in prison for the duration of the sentence. We have had for a number of years what the Garda have described as a revolving door system, whereby the courts sentence people and they go in the front door of Mountjoy Prison and some months later they are allowed out the back door to make room for someone else. Whereas this legislation is badly needed, we are only doing a part of the job and it is a little disingenous for the Government to support legislation on appeal against unduly lenient sentences when they have failed to provide the facilities to ensure that proper sentences are fully serviced. That is a real problem.

If, under Deputy Harney's amendment, the information was published it would to some extent highlight the numbers of people who are being released from the prisons without fully serving sentences. I accept that a system that allows for time off for good behaviour has some merit. I do not suggest that we set that aside entirely, but the concept of early release has been used not simply to allow people out for reasons of good behaviour but to make space for new people sentenced by the courts. That is not good enough.

In the context of the information that Deputy Harney has suggested should be published it would be important that not only do we note the sentence handed down by the courts, but the length of time the person served prior to release. That should be a matter of public knowledge. The general public and the Judiciary are entitled to know that if someone is sentenced to a term of imprisonment, be it for six months, six years or nine years, how much of that term is served by the individual. It should be a matter of public record how we operate our criminal justice system and the extent to which court sentences are complied.

I agree with the view that the power of the Minister to commute fines handed down by the courts should be abolished. If we accept the independence of the courts and the Judiciary it is extraordinary that after a judge has imposed a fine on a person that the Minister for Justice can, by the stroke of a pen, reduce that fine. Like Deputy Harney, I can recall during the 13 years I have been a Member of this House writing on three or four occasions asking a Minister for Justice to exercise this power. I have always felt uneasy about it and I wrote the letters merely because I had been requested by the constituents concerned. They were entitled to have their request considered by the Minister as that power exists. It was not for me to block representations being made on their behalf. It is wrong and a Minister should not be in a position to make such decisions.

There is an assumption by the general public that if a particular party is in Government a fine imposed on a supporter of that party will be commuted. That may not be the case and it may be an injustice to any Minister to suggest it is how they operate. Nevertheless, there is a smell of that type of procedure going on behind closed doors. It is a procedure that does not show respect for the courts or safeguards the independence of the Judiciary. It is open to abuse and should be abolished.

Mr. Gilmore

I too want to comment on the absence of the Minister for Justice from the debate this morning. The Opposition parties co-operated with the Government in bringing forward the debate on this legislation because we accepted, at face value, the Government's bona fides to have this legislation, which we all consider to be important, debated and enacted as quickly as possible.

Usually, I would not agree with an arrangement for the taking of Second Stage of a Bill on Wednesday, followed by Committee Stage on Thursday morning with a break before Committee Stage and it and Report Stage guillotined in the space of about one hour. In normal circumstances if such an arrangement for the taking of a Bill was presented to this House I certainly argue that insufficient time was being given for consideration of the 20 amendments before us. I would argue that the gap between the various Stages was not sufficient to allow the Minister, and his officials, consider the points made by Members. For example, the Minister will have one hour and a quarter — the period of Question Time — to consider points put forward on Second Stage. That is insufficient time, but I accepted that procedure because the Government was anxious to have the legislation dealt with as quickly as possible.

If I had been informed that the Minister was anxious to have this legislation dealt with because she had a commitment abroad, I would have been open to accommodating that wish, but that is not what we were presented with. On Tuesday evening we were presented with a shoddy, pre-rehearsed set up by the Taoiseach who said the Government was willing, if the House wished, to take the Bill. This was followed by a Member of one of the Government parties innocently asking whether the Bill could be taken. This was a shoddy, rehearsed set-up arrangement in a cynical attempt to portray the Opposition parties as not accepting the taking of this important legislation which the public was crying out for. The Opposition parties agreed to have the Bill dealt with quickly and expeditiously. The Minister then showed discourtesy to those of us who were prepared to change our schedule in order to be present for the Committee Stage debate, and prepared our amendments in the hope that the Minister for Justice would take them on board. I have no objection to the Minister going to Australia on official Government business or to accommodate her by taking legislation for which she is responsible but I object to being sold the kind of cynical political pup which we were sold on Tuesday evening.

The amendment before us deals with a question raised by Deputy Harney yesterday. I agree with the principle that the review of sentences, and the exercising of discretion, should be taken out of the hands of politicians. There is probably a need for an independent body to review sentences. It is inappropriate that decisions by courts can subsequently become the subject of political lobbying. We are continually asked to make representations on behalf of people who have been convicted of offences — in many cases minor offences — to Ministers for Justice to commute the sentences, allow the fine to go unpaid and so on.

I wish to express a note of caution in relation to Deputy Harney's amendment. The bulk of those representations refer to minor cases. Most of the letters I write to the Minister for Justice are petitions in relation to a fine for non-payment of a television licence or some other minor offence. Very often I write to the Minister for Justice because the people concerned did not get a fair hearing in court. During the week I heard of a person who turned up in court on a relatively minor driving offence and was led to believe by the gardaí that there would be no problem, that they would not press the matter. The person in question, who was not represented in court, got very short shrift from the judge, had her licence suspended for a period of six months and was fined. That court decision will be the subject of a letter from me to the Minister for Justice in the course of time because she cannot pay. Politicians make representations to the Minister for Justice on behalf of people who have been convicted of minor offences and been treated, in some cases, very peremptorily by judges in a hurry to the golf course or to lunch. I have some reservations about blowing out of proportion the kind of minor offences which are very often the subject of these types of representations.

Deputy Harney referred to a parliamentary question put down by me on 3 March. I put down that question to find out how decisions on matters such as temporary release are actually made. I found myself in the situation, in which I am sure many Members of the House often find themselves, of making representations to the Department on Christmas eve on behalf of a constituent who was due for release on, I think, 16 January, who was serving the end of his sentence in an open prison and who had expected, as had his family, to be released temporarily for the Christmas period. I know that other Members of the House also made representations on his behalf. To make a long story short, the Department decided that the person concerned could not be released temporarily for Christmas. I was puzzled why somebody who was to be released on 16 January could not be released for a day or two over the Christmas period so that he could be with his family. That is what prompted me to put down the question, which sought to establish the offenders who had been released temporarily for Christmas, the length of time which remained to be served by them and the offences they had committed. I wanted to see if I could establish from that list whether there was any rationale or pattern to the way in which the Department makes these decisions. I could not establish any pattern to these decisions and I still do not understand the basis on which these decisions are made.

I have to question the lack of accountability for the making of such decisions. There are two sides to the story. On the one hand, there is the public concern about the revolving door problem, where offenders are let out of prison either to make room in the prison or for some other inexplicable reason, while on the other hand there is the problem of offenders who have some grievance in relation to the policy of the Department. I agree that there is a greater need for accountability and transparency in this area so that there is not, on the one hand, a public perception that offenders are being released willy-nilly by the Department and Minister for Justice and, on the other hand, that offenders do not feel they have been passed over for release, treated unfairly, etc. The way to deal with this issue might be to take it out of the political area altogether and put it in the hands of an independent sentencing review board who could make the decisions.

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

Before I refer specifically to the amendment, I wish to correct a point I made during Second Stage debate yesterday. It was brought to my attention that in reply to a question from Deputy Quill I suggested that counsel for the prosecution makes representation in relation to sentences. Of course, that is not correct and I did not intend to say it. I apologise to Deputy Quill. I misunderstood her question; I thought she was referring to counsel for the defence. I see from the list of amendments that we will be able to discuss this matter further in the context of a later amendment from Deputy Quill.

I also omitted yesterday to congratulate the spokespersons for the various parties on their appointments. It is the first time some of us have debated a Justice Bill across the floor of this House. Deputy Gilmore was appointed spokesperson on Justice for his party during the last days of the previous Dáil.

Mr. Gilmore

I nearly died with it myself.

Mr. O'Dea

I congratulate the Deputy on being returned to the House and on retaining his position. I wish to take this opportunity to say that the person he replaced as Justice spokesman for his party, Pat McCartan, is a great loss to the House. I say that genuinely. I know a constituencies commission will be set up, but I do not know what the configuration for the new constituencies will be for the next election.

Miss Harney

Is the Minister going to try to bring Pat McCartan back?

Mr. O'Dea

I would like to see Pat McCartan back in this House because it is my sincere opinion — I say this particularly in the context of Committee Stage debates — that Pat McCartan made a tremendous contribution to this House, and nobody can take that away from him.

I also wish to congratulate Deputy Harney on her appointment as spokesperson on Justice for her party and on her election as Deputy Leader of her party. I will not go so far as to say that I hope she goes further as I fear I might hamper her chances. Nevertheless, I wish her the very best of luck.

With regard to the amendment before us, I take on board the point made by Deputy Gilmore — I made the same point yesterday — that there should be more time between Committee and Report Stages of Bills as a number of technical points will inevitably arise on Committee Stage. In considering whether to make these changes on Report Stage sometimes we have to consult outside parties, sometimes the parliamentary draftsman has to look at the proposed change in detail and sometimes we have to consult with the Attorney General's office to check the constitutionality of the suggested change. I have to say that an hour and 15 minutes — the interregnum between Committee Stage and Report Stage of this Bill — is not sufficient to do all this.

I want to make it clear to the House that I have all the authority the Minister has to accept any amendments put forward by the Opposition which I consider to be worthwhile and desirable. I am sorry that Deputy Shatter chose to distort what I said yesterday. This is not the first time he has done this, and no doubt it will not be the last time. I am very sorry to have to say it, but it is perfectly in character for distortion to come from that quarter. The point I made yesterday was initially made by Deputy Harney and repeated by Deputy Gilmore today, that is, in view of the short interregnum between Committee and Report Stages of this Bill I might have to defer consideration of whether or not to accept amendments, so that I can get outside advice, until the Bill is debated in the Seanad in two or three weeks' time. That may have to be the interregnum in this instance rather than the interregnum of one hour and 15 minutes between Committee and Report Stages. That is the point I was making yesterday. I did not mean to suggest that I did not have the authority to consider or take on board worthwhile changes proposed by the Opposition.

As I read the amendment, Deputy Harney wishes to have published in Iris Oifigiúil all reductions in fines, all changes in community service orders and all matters dealing with reductions of terms of imprisonment or temporary release. I do not think it would be practicable to extend this provision to cover fines, especially fines for minor offences. Nowadays practically everyone approaches their TDs for assistance and I can assure the House that if that power was taken away from us my task both as a public representative and as Minister of State at the Department of Justice would be made much easier. Purely from a selfish point of view, it would be of benefit to me if this happened, but I would not be inclined to support such a move.

It would be impracticable for every single decision in regard to every small fine imposed — even for a parking offence or, as Deputy Gilmore said, failure to get a television licence or drinking in a pub after hours — for every single commutation decided by the Minister for Justice to be published in Iris Oifigiúil. Maybe that is not what Deputy Harney intended; she may have intended to confine this provision to instances where a prison sentence had been changed in some way or temporary release granted.

The tradition has been that the privacy of people who have been sentenced to prison is generally protected. I would be reluctant to depart from that tradition as such protection is justified by the need to save the offender's relatives and so on from further damaging publicity. If such protection was removed a prisoner's rehabilitation could be affected. Temporary release is regarded internationally as a potent factor in rehabilitation. We cannot have it both ways; the offender must be allowed to take his place in society when he is released. We hope that he will not offend again, unfortunately our hopes are dashed in this regard in many cases because there is a very high level of recidivism. A person who is released early has to have satisfied the prison authorities etc. that he is fit to be released. That does not always work in practice because life is not perfect. The intention of the Minister is that such a person should be rehabilitated and allowed to take his place in society. If everything goes well, he does not have to serve any further term of imprisonment for that offence.

Decisions on temporary release for long term offenders are taken after careful consideration by the prison authorities and the Probation and Welfare Service and, where necessary, the medical officers and anybody else the prison section of the Department may wish to consult. It is not an arbitrary procedure.

Several speakers have said that the power to commute fines should be abolished. Deputy Gilmore made a very good case for the opposite argument. In my capacity as a Deputy I have been approached many times by persons seeking to have their fines reduced. Sometimes a reduction has been made. The important point is that a petition to the Minister for Justice for a reduction in a fine results in delayed collection of either the full or any reduced amount. The delay gives people who are in receipt of social welfare payments sufficient time to get the money together. If the power to commute fines and the possibility of delay in collection did not exist, many of my constituents would end up in prison for non-payment of a fine. This is the reality when 300,000 people are unemployed. I had the case of a person who lost his job subsequent to the imposition of a fine and had to live on social welfare. In such a case I am delighted to delay collection and possibly to secure a reduction. We must take these considerations into account.

Deputy Gilmore referred to the inadequate time allowed between Committee and Report Stages. I accept that point. We may have to consider amendments between the passing of the Bill in this House and the debate in the Seanad. I am not disposed to accept the amendment, although I understand the reasoning behind it. Deputy Harney made her case very well.

Miss Harney

I thank the Minister for his compliments. He did not seek to defend the absence of the Minister for Justice, who said yesterday that she would listen carefully to the contributions by Deputies. Her absence makes a farce of the whole thing. I detect from the Minister of State's response on this amendment that he does not intend to accept any amendments. Consequently the whole debate is a farce. We will probably have to deal later with amendments from the Seanad, where the real debate is apparently to take place.

I do not suggest that there should not be a power to reduce fines or sentences. My point is that this power should not be vested in politicians. We know how unsatisfactory it was when politicians made decisions in relation to planning matters. The establishment of An Bord Pleanála has taken these matters away from the area of political favouritism.

Unless our criminal justice system is a deterrent against crime, it does not serve its function. In the absence of a deterrent, why would any of us want to obey the law? Why would we bother to pay fines such as parking fines? Fines are intended as a deterrent. Anybody who has had a car seized and has had to pay £100 to have it released will be careful in future to park it legally. The power to reduce fines should not be vested in the Minister for Justice. The decision is made behind closed doors and nobody knows the basis on which it is made. We have no way of knowing whether the friends or political associates of the Minister of the day have an input. Deputies could put down parliamentary questions seeking this information but the Minister of State seems to think it would not be practicable. I should prefer an independent board who would produce an annual report indicating the basis on which they had made decisions. The amendment is not unreasonable.

People have come to me who have been fined for not having car insurance. I do not consider this a minor matter. We can give the courts power to take account of the means of the individual when imposing a fine. A fine of £50 may amount to very little for some people but for others £50 can be a week's disposable income. I am not in favour of mandatory fines for specific offences because the court must have discretion to take account of disposable income.

I accept that there can be compelling cases for a reduction in the penalty imposed by a court. I have dealt with cases where if the fine were to be paid a family would have to do without essential foodstuffs for several weeks. A wife once said to me that her husband would have to rob the money to pay a fine or else go to jail, at a cost to the State of £600 or £700 a week. In such a case, is it not preferable to reduce the fine and make it payable over a longer period? We have to be practical about these matters and we must devise a system of justice which is fair and equitable.

Having been a Minister of State, I can imagine how these decisions are made. A wad of paper would come before the Minister on a Friday afternoon and I doubt if the Minister would have the time to read the back-up information or to carry out an analysis of each case. The influence of the person making representations or simply the instinct of the Minister may be the determining factor. I am not happy about that. If the information were to be made available through Iris Oifigiúil we would be doing a great service to the Minister and to politics. We would also help to restore faith in the system. This point was made to me last weekend in a social context by a district justice. The existing system is deeply resented and judges rarely know what decision is made. That is unsatisfactory. If they were to see that the Minister generally reduces the fine in a particular type of case, it might encourage the judges to take other factors into account.

The giving of information is not a bad thing. We have heard much about openness and freedom of information. If those things mean anything, access to this kind of information is a basic right.

If one has to apply in a public way to build an extension to one's house and advertise it in the newspapers it is not unreasonable that a fine imposed for a criminal offence which is reduced by the Minister should be published also. I am talking only about fines which are reduced by the Minister. I am not suggesting that Iris Oifigiúil should publish every fine which is imposed by a court. I do not believe I am being unreasonable. It would help to restore faith in the politicians and convince people that we do have a system of justice that is fair and above board; that politicians do not criticise lenient sentences because of the blaze of publicity in relation to a particular case and then make decisions behind closed doors which are equally unsatisfactory.

While I will put the amendment I will not be calling a formal vote because I do not want to delay the House, as we have a very short time. It is particularly difficult, particularly for those of us who do not have legal expertise, to come to terms with legislation of this kind, talk to as many people as possible who have a broad and balanced view and put in amendments in such a short time. The time is far too short and we only agreed to it being taken in such a short time in very extraordinary circumstances. It would not have been unreasonable to expect the Minister to postpone her travel until tomorrow, or even this evening, because St. Patrick's Day is not until Wednesday. I am disappointed that she did not do so.

Mr. O'Dea

Deputy Harney said that she feels that no Opposition amendments will be accepted today. I think she is being unduly pessimistic. She also said that she did not want this power vested in politicians but in an independent board. She quoted the example of An Bord Pleanála, which took over the function of planning appeals from the Minister for the Environment. An Bord Pleanála might not be the best example to quote. Some of the experiences we have had with An Bord Pleanála have been distinctly unhappy. If somebody comes to me petitioning in relation to a fine I still have to do as I did as an ordinary backbencher, that is, petition the Minister. In theory it is the Minister for Justice who makes the decision. In practice, however, the volume of these is so great that the Minister could not possibly look at them all and the decision is made by the petitions section of the Department of Justice. I do not think anybody should question the independence of the civil servants who man the petitions section of the Department of Justice. Maybe it would be better to give the responsibility to an independent board, but that would be only for the sake of appearance. The reality is that independent people of integrity, public servants, decide these things. I see no practical reason for giving the responsibility to an independent board other than for the sake of appearances. For the sake of appearances we do far too many things in this House that have absolutely no practical value in real life.

Deputy Harney make the point that somebody requiring to build an extention onto their house has to publicly look for planning permission. The reason for that is that their neighbours or somebody else may wish to object. In the case of a fine, however, the fine has already been imposed. There is no point in objecting to something ex post facto. Deputy Harney also made the point that not all fines are commuted. I accept that, but practically everybody who is fined now goes along to his Dáil Deputy and quite a high volume of fines are commuted. We would have to publish a special edition of Iris Ofigiúil every month if we were to include all the information the Deputy requires.

Miss Harney

May I ask the Minister one simple question?

An Leas-Cheann Comhairle

We should be completing this, as we are on Committee Stage. Am I to understand that the Deputy is not pressing this amendment?

Miss Harney

I am pressing the amendment.

Question: "That the new section be there inserted" put and declared lost.

Amendment declared lost.

An Leas-Cheann Comhairle

We now come to amendment No. 2 in the name of Deputy Shatter. This amendment is consequential on amendment No. 7 and amendment No. 9 is related. We will therefore discuss amendments Nos. 2, 7 and 9 together.

Mr. Shatter

I move amendment No. 2:

In page 3, subsection (1), between lines 14 and 15, to insert the following definition;

"‘the Act of 1981' means the Family Law (Protection of Spouses and Children) Act, 1981;".

The related amendment, which is amendment No. 7, seeks to insert a new section 6 into the Act which reads as follows:

"On conviction of any person of an offence to which section 5 applies, in addition to dealing with him in any other way, the court may prohibit such person at any future date from attending at or near to or entering any place in which the person in respect of whom such offence was committed resides or is in employment and from using or threatening to use violence against, molesting or putting in fear the person in respect of whom such offence was committed or any member of such persons family.

Subsection (2) reads:

An order made pursuant to subsection (1) of this section shall be treated as if it were a barring order made under the Act of 1981 and sections 5, 6, 7 and 8 of the Act of 1981 shall apply to such order.".

Yesterday on Second Stage I made the point that we should have a more victim orientated system of criminal law. I made the point that, particularly in sexual offences such as rape, sexual assault or incest, there is always a fear in the minds of the victims that, if they give evidence in court proceedings which results in the imprisonment of the person who has committed the offence against them, at some time in the future the person will, when released, come back to haunt them and seek revenge. There are many people who have been the victims of sexual abuse and sexual offences who have not reported them to the Garda, or who, having reported them, have backed out of giving evidence in court for fear of the consequences if they do so.

It is probably true to say that in reality very few people have found that some years later the convicted person has come back to create problems for them. I do not think we have had too many instances of that, but from the discussions I have had with people who have been offended against in this way I know there is a very real and continuing fear in their minds that this could happen. Very often when a sentence of imprisonment is handed down for a sexual assault such as rape or child sexual abuse, not only is the offender imprisoned but the victim is, effectively, imprisoned in her own house following the release of the person who has committed the offence because she fears what will happen if she comes in contact with the offender. If the offender does not visit her in her home, she is fearful that she may simply bump into him in the street and that that may result in some form of attack on her.

The amendments I propose are designed to extend to the courts an additional power when convicting persons of sexual or violent crimes under the terms of the Act. The Minister, in the Act, seeks to extend to the courts the power to award compensation orders following a conviction. This amendment is designed also to extend to the courts the power to, in effect, grant an order which will bar or prohibit an offender from attending at or near, or seeking to enter the home in which their victim resides and from in any way molesting or putting the victim in fear. It does so by providing in the context of that power for a discretion that the courts would be able to exercise in appropriate cases and which the courts could enforce if, following the conviction and imprisonment of a person on their release, they failed to abide by the order. It seeks to provide enforcement mechanisms that apply under the Family Law (Protection of Spouses and Children) Act, 1981, to such orders. In particular it seeks to apply sections 5, 6, 7 and 8 of that Act. Section 5 of that Act requires the courts when making a barring order to furnish a copy of that order to the Garda in the local station in the area in which the person who is being protected by the order resides. Section 6 of that Act renders the breaking of a barring order an offence that can result in summary conviction, a term of imprisonment of up to six months and a fine of up to £200. If, following release from prison, the perpetrator of a sexual offence sought to interfere in any way with his victim that person would, by simply going to the home of the victim, be liable to prosecution and to a prison term of up to six months. Moreover, section 7 of that Act extends to the Garda a power of arrest that they would not necessarily have otherwise. Section 8 of the Act makes it an offence for someone charged with such an offence to commit a further offence when on bail; that of itself becomes an offence that could result in the imposition of a consecutive sentence.

Yesterday I made the point that the Bill is welcome in so far as it will allow for appeals against unduly lenient sentences, in so far as there may be incorporated into it either the amendment I have tabled or the amendment tabled by the Minister to increase the maximum term of sentence for incest to 20 years and in so far as it provides for compensation payments. However, it is my view that the Bill must also provide additional protection to victims of sexual offences. Were the court, after handing down a conviction, to put in place an order of the kind to which I have referred, considerably more peace of mind would be afforded those who are concerned that a person who has been sentenced for committing an offence will come back to haunt them after release from prison.

The provision would be a relatively simple and straightforward legal measure that could properly be inserted in the legislation. Just as the House is now conferring power on the courts to grant compensation orders, there should be no difficulty of any nature in the courts being given a discretionary power to prohibit someone convicted of a violent assault or a sexual offence from seeking to interfere with, approach or attend at the house or the business premises of his or her victim following release from prison. The fear experienced by victims was expressed very vividly in the recent Kilkenny case by the victim of incest who appeared on our national television news.

I hasten to add that my proposal is not merely a rapidly thought-up provision resulting from one very tragic case; it is a proposal that should have been enacted into law some time ago and is based on my own experiences in dealing with people who have suffered in this regard and who have very real fears that the law will not provide them with full protection following the release from prison of the perpetrator of a sexual offence if that person comes to seek them out.

My proposal would provide protection, it would provide for a new criminal offence in this area and it would give the Garda additional powers of arrest, and it would do so on the basis of a legal scheme that has been proved to work well under the Family Law (Protection of Spouses and Children) Act, 1981. Just as the Minister sees fit under this Bill to adapt the attachment of earnings provisions contained in the Family Law (Maintenance of Spouses and Children) Act, 1976, for the payment of compensation orders, there is no reason that we could not also attach the enforcement provisions in relation to barring orders under the Family Law (Protection of Spouses and Children) Act, 1981, to the making of these kind of orders.

I seriously urge the Minister to accept this amendment. I urge the Minister not to kick the amendment backwards and say that it has come before the House too quickly and will have to be considered, possibly in the Seanad. As Deputy Harney very correctly said, we in the House seem to be in a bind today by virtue of the fact that Committee Stage and Report Stage are both being taken today. If the Bill goes to the Seanad with the Minister having taken none of the Opposition amendments on board today and if the Minister subsequently seeks to take the amendments on board in the Seanad the Bill will come back to this House.

In retrospect, if the Minister for Justice had been more up front with the House with regard to her intentions, it would have been a better approach for the House to take Committee Stage today and to take Report Stage on the day the Dáil resumes after the St. Patrick's week vacation — a vacation that is being imposed on some of us, who do not approve of the Dáil taking the intended break. It would have been much more practical for the House to take Report Stage of the Bill on the Tuesday that the House resumes after the week of vacation, because in that way the Minister would have had more time for consideration. As Report Stage is to be taken today, I ask the Minister to take on board my proposal, bearing in mind that having given the proposal further consideration the Minister or the Minister of State may want to make further amendments to it in the Seanad. The provision has been very carefully drafted and I believe it is workable and correctly presented. I also believe that if the Minister has further time to reflect on the provision, having taken it on board, when it goes to the Seanad it will be recognised that there is no need for amendment and, if that is the case, there will be no need to bring the matter back before this House.

If this additional scheme of protection were put in place the House would send out a message that Deputies are concerned with providing a victim-orientated protective system within the area of criminal justice and that we in the House acknowledge the very real fears often held by those who have been the victims of what most of us would regard as the most appalling, inhuman and vicious kind of offences.

Ms. McManus

I am surprised at the way in which the Minister has approached this legislation. I certainly took at face value the Minister's declared interest in hearing what Deputies had to say and I was astonished yesterday that she disappeared, followed later by the Minister of State, and that the Minister remaining in the Chamber was the Minister of State at the Department of Social Welfare with special responsibility for poverty. That was a very unfortunate signal to send out to the public in that the implication could be made that sexual abuse and incest are in some way related to poverty, which is simply not the case. There is always a danger that people think of those who are poor as being somehow more likely to be criminal or deviant. An institute in Dublin that deals with sexual offenders notes that the average educational standards of sexual abusers is rather higher than those of the average criminal. The arrangement made yesterday was unfortunate. I am surprised that the Minister did not consider that it was important for her to be in the Chamber.

Amendment No. 9 highlights the point that the law is not good unless people feel that they can avail of it. I learnt yesterday that as the law stands at the moment the Director of Public Prosecutions is able to go to the Supreme Court to appeal sentences, yet that power has not been used. It is very important that when legislation is changed we make sure that those who need to avail of legislation feel that they can come forward and do so. Amendment No. 9 enables the victims of abuse and violence to feel safe in approaching the courts. It is my argument that unless that shelter of the State is provided the victims of violence and sexual abuse will not be empowered to come forward, yet that is probably the single, most effective way to start the process of combating these terrible crimes.

The amendment seeks an extension of the barring order protection procedure to victims of this kind of abuse and, in cases in which a person has been charged, for the interim period in which the case is being heard. At present the barring order procedure is quite limited in that it recognises only the marital relationship. I acknowledge that the Minister for Equality and Law Reform has stated that he will change that provision — such a change will not come before its time. Many people nowadays live in relationships other than a marital relationship and it is to be hoped that we all recognise, at long last, that violence and sexual abuse occur in other relationships also, whether they be father-daughter relationships, brother-sister relationships or other relationships not covered by the barring orders and protection orders we have at present. When amending the legislation, it is vital that that protection for the individual victim be stitched into the legislation. If that is not done, an enormous day-to-day burden will be put on the victim, and we cannot do that any longer. Even in relation to the barring orders that exist and those that work there are still numerous instances when those orders are broken and the supports of the State are not sufficiently quick to deal with the problem. We need to provide security for the victim as well as punishment for the perpetrator. If the two do not operate in tandem we will not achieve the desired result.

The message must go out that this crime is evil and wrong. Very often offenders in sex cases, particularly in cases of incest, do not believe that the crime they committed was evil and wrong, and we must spell that out clearly. We will not make progress unless the security of the victim is assured. Without this type of amendment we will not be able to provide that shelter, we will simply cast victims adrift and let them take their chance in the courts, in the street or in the home. The victims must have the protection of the State.

Many victims of domestic violence go to refuges even where protection and barring orders setting out their right to stay in the family home are in force. Victims who stay in the family home with a violent partner often find their position so difficult and stressful that they could not institute court proceedings. We must provide emergency accommodation in refuges. Is the Minister of State satisfied that we are providing such accommodation countrywide? I urge him to consider victims of sexual abuse and the ordeal they have been through. Hand in hand with any punishment imposed on the perpetrator of such a crime must be the provision of shelters for the victim who is a cruical witness in any court proceedings and without whose help the State will not be able to prosecute the offender.

Mr. Gilmore

Reference was made to the victim in the recent Kilkenny case. Two issues dominated the statements by the victim since that case. One was her desire to get on with her life and the second was her fear of what will happen her on her father's release from prison. That fear reflects the concerns of many people in relation to co-operating in the prosecution of a case. This does not relate only to sexual violence and sexual offences generally. The predominant worry of most people when reporting an offence to the gardaí, and subsequently co-operating in the prosecution of the case is the fear of retribution by the person against whom they have brought the case. I have often heard people say, in response to being asked if they would co-operate with the gardaí in the prosecution of a case that they do not want to have a stone thrown through the window and they are afraid of being attacked. Indeed, that has turned out to be the case many times when people were released from prison. In my area there were one or two tragic cases of people on being released from prison subsequently attacking, in a vicious way, those who gave evidence against them in court. That is a real fear of people generally, particularly in cases of sexual abuse.

However, there is an additional dimension to those cases, that in the majority of such cases the offender is either a member of the victim's immediate family, a relative, a neighbour or a person known to the victim. It is not enough to deal with the problem simply by prosecuting and gaining a conviction against that person followed by a term of imprisonment. The duration of the sentences can range from a few months to a considerable number of years. That is not sufficient because the victim is always worried about the release of the person who committed the offence from prison, possibly without having been rehabilitated. The perpetrator may be back living in the victim's immediate locality. As Deputy McManus said, where the offender is a member of the family, the onus is on the victim to seek a barring order. Where the offender is not a member of the family the victim may be obliged to change house

This obligation should not be placed on the victim to accommodate the movements and living arrangements of the offender when released from prison. Much consideration should be given to this matter and the courts should be given authority to deal with it. Where a sexual assault is committed by a member of the victim's family, consideration must be given as to where the person will live when released from prison. If the offender is allowed return to the family home that does not take account of the victim. If the offender lives on the same street as the victim, will the victim have to endure the possibility of meeting the offender in the street, in the local shop or wherever, quite apart from any threat of physicial violence? There may not be any question of the offender committing any further offences against the victim, but at the very least the situation is unpleasant for the victim. Provision must be made to deal with this matter and the courts should be given some latitude.

In the wake of recent cases, many people suggested harsh punishments for those found guilty of sexual offences. One of my constituents suggested recently that transportation should be reintroduced as a form of punishment. I would not advocate going that far, but the logic that gives rise to that suggestion is similar to the logic behind these amendments, that provision must be made for the removal of the offender from the circle in which the victim mixes. We must concentrate on the right of the victim to get on with her life. It is very difficult for a victim to do this if, after a few years — four or five years in some cases; in the Kilkenny case it will be five years with remission — the victim must occupy the same living space as the offender.

Miss Harney

I support the principle in these amendments. If the Minister accepts the amendments of Deputies Shatter, Gilmore and McManus I would be pleased to support them. I would not like to choose between the two, but in relation to Deputy Gilmore's amendment, I wonder whether problems might arise in that people are innocent until proven guilty. The suggestion in the amendment of Deputies Gilmore and McManus is that once a person is charged the court could impose an order restraining the accused from going near the premises or the home. I would like to think that might be the case. I can imagine what will happen in a house following a daughter or a wife reporting a serious case of incest or rape and the husband, the father or the brother being charged. I can imagine the dreadful atmosphere in the home between the time the person was charged and the subsequent hearing of the case, which can be a considerable time. If it was not a case of infringing on people's legal or constitutional rights the court should have the power in certain circumstances to make an order. Fear might prevent people from pressing charges and I should like to hear the Minister's views in that regard.

The principle of what we are talking about here — letting somebody get on with her life — should mean that the court could make an order. I am not certain that it should be made at the time of conviction because people change. I have heard of one or two extraordinary cases where people in detention for very serious crimes have changed. I have been told by people who know the person, those in the institution in which the person is detained, social workers and others, that that is the case. If the person has genuinely changed and if there is a chance that the family could get together when the offender is released I would hate to think that an order made at the beginning of a ten year sentence would still be in force nine years later.

I will support an amendment in the name of Deputy McManus to the effect that a person in custody should have professional help. It is obvious that such people do need professional help because they are suffering an illness. We need to put considerable resources at the disposal of people who have been convicted of serious crimes of that nature. I should like to hear the Minister's view in this respect. Perhaps there could be a rehearing in the court shortly before the person is due to be released. New evidence could be heard from various people as to the person's state of mind.

The State should provide financial resources for the victims of these crimes. I do not know the girl in Kilkenny but she lives in a small place — indeed Ireland is a small country — and it is difficult to see how she will ever be able to escape from her ordeal. Obviously, her neighbours know her and probably people living quite a distance from her would also recognise her. In exceptional cases of that kind there should be some way whereby the State could provide resources to enable the victim to move to a different part of the country. Perhaps she could buy a house in an estate being built, where everyone is moving in together, instead of buying a house in a settled area where people might guess her identity. It is the only way someone of this kind could make a new life for herself and her child. I am well aware of our financial difficulties and I would not favour providing financial resources in all cases, but the case in Kilkenny was horrific. I am one of the few people who did not hear her on television or radio but I read an account the following day. I never heard anything like it. It was like reading a novel. It did not seem real that something so awful could happen over a prolonged period. It was hard to believe that someone could go through such agony, turmoil, violence and abuse. It really shocked me and any decent person who heard her felt the same. As I have said, in cases of this kind the State should provide resources to enable her to build a new life, perhaps they could provide a sum of about £45,000 to enable her to recover from her ordeal.

I also felt very saddened when I heard her say that she dreads the day her father is released because he is very vindictive. She is now probably living in even greater fear because she knows what he was like before all this surfaced and he was sentenced. She must be wondering what his state of mind will be when he is released. Perhaps he will have changed — we all hope so — but that cannot be guaranteed. It is not directly relevant to this Bill, but I know that the vast majority of people would like to think that resources would be put at the disposal of this girl to ensure that she can start a new life. It would be money well spent.

I will not delay the House by repeating what Deputies McManus, Gilmore and Shatter said, but I support the thinking behind the amendments. If the Minister is prepared to accept any amendment I will be happy.

Mr. O'Dea

I listened carefully to Deputy Harney's contribution. She recognises the complexities in this situation. It is not a simple matter; it is certainly not as simple as Deputy Shatter would have us believe. We must remember that this problem has arisen in the context of the Kilkenny case and, like many other people, I listened to the unfortunate victim being interviewed. She emphasised that she feared for her life when this man is released. I am a politician who faces reality and we must recognise that if somebody wants to perpetrate violence on a person when he comes out of prison, all the legislation, protection and barring orders will not stop him from doing so.

What is the case at present? If that man on his release from prison decides to go after the victim or her mother and commits an act of violence against them, the chances are that he will probably spend the remaining years of his life in prison. He knows that and the situation will not change because the court makes an order protecting them and preventing him from approaching them in the first place. If we change the law in that regard and if he intends — as they fear — to perpetrate violence against the victim and her mother, he can be arrested, not only for what he did but for breaching the barring order. However, if we do not change the law he can be arrested anyway because he will be in breach of the criminal law if he carries out the act of violence which they fear. That is the unfortunate reality.

There are many laws in place as a deterrent to crime, but crime still happens. The changes suggested in Deputy Shatter's amendment certainly will not prevent the man from perpetrating violence. He said in his contribution that a change along the lines suggested by him would give her peace of mind, which she does not have at present. I would like to believe that, but I cannot. If I believed it I would accept the amendment without hesitation.

Deputy McManus said there was something significant about the way in which the Minister of State a the Department of Social Welfare, Deputy Burton, came into the House yesterday evening. I should like to outline what happened. The Minister for Justice left the House about noon yesterday and I then took over. However, I had been with the Minister before she left and I was here all day, apart from slipping out once or twice for a cup of tea, and I do not think Deputy McManus would begrudge me that. The Minister of State, Deputy Burton, wanted to make a contribution to the debate as she is entitled; but to deduce from that that we are trying to send out a signal that poorer people commit sexual offences shows tremendous imagination. Of course, Deputy McManus is a journalist.

Ms McManus

I am a public representative.

Mr. O'Dea

I read the Deputy's articles every Sunday with great interest. As I said last evening when concluding on the Second Stage, I have a great deal of sympathy with the object of these amendments, as do all other Members of the House, who are still conscious of the fear expressed by the Kilkenny incest victim about the release of her father at the end of his sentence. In fact, courts in the past, when suspending or adjourning a sentence or releasing offenders on probation, have sometimes made it a condition that the offender ceases to have any contact with the victim of the offence and in particular to keep away from the victim's house. Failure to comply with the condition could involve restoration of the sentence or breach of the probation order. These are cases which are not in the very serious category, although the courts concerned in imposing the condition must have considered there was a likelihood of the offender molesting or annoying the victim.

Where a long custodial sentence is imposed, the situation is of course different. The tradition has always been that someone who has paid the penalty for his crime should be every bit as free on leaving prison as he was before being sentenced. I fear it would be difficult to have a provision of the kind proposed by the Deputy that would stand up to constitutional scrutiny. For one thing, there would be an inherent assumption that a person, having had ample time in prison to reflect on the crime he had committed, would still constitute a threat to the victim and be likely to intimidate him or her. Certainly, as Deputy Harney said, that could not be true in every case.

To summarise the matter, Deputy Shatter's amendment — well intentioned though it may be — is giving the sentencing judge the right to assume there will be absolutely no change at all in the offender when he or she comes out after a long period of imprisonment. The provision suggested by Deputy Shatter would involve the sentencing judge making a judgment on what an offender would be like at the end of his sentence six or seven years further on when all the judge could do is make a guess. In some cases an offender, though completely reformed, could be debarred from entering particular localities for a long period after release. That would be difficult to justify. So far I have stressed the situation of the offender rather than that of the victim, who of course deserves all possible sympathy. However, we cannot overlook the need for fairness to persons on release from prison who are no longer any danger to anyone.

I do not want to deal with the matter in a negative way, and I made that clear yesterday. I believe something should be done to improve the present situation of the victim where the released prisoner makes a nuisance of himself or, worse, intimidates him or her. For nuisance and annoyance the civil remedy of injunction is unwieldly and expensive. I certainly think it should be made a specific offence to indulge in such behaviour with a power of arrest without warrant and an appropriate penality being provided so that the victim could have speedy redress.

I will also consider having a type of protection order and barring order on the lines provided in the 1981 Act mentioned by the Deputy, but I must emphasise that these changes will require very careful examination and I could not undertake to include them in the present Bill either here or in the Seanad — I am not saying that I will not but I cannot undertake to do so today. As it happens, however, there is a number of criminal justice measures included in the Government programme, some of which are at an advanced stage of preparation, and I will ask to have a provision of this nature considered for inclusion in whichever Bill is nearest to publication.

With regard to the amendment in the names of Deputies Gilmore and McManus, much of what I said in response to Deputy Shatter's amendment is relevant, although the first subsection of the proposed new section is related more to circumstances existing at the time the restriction order was made and is confined to a specified period. On the other hand it does not have the notion of imposing a type of barring order, as envisaged by Deputy Shatter.

Nevertheless, this amendment has wide implications and goes beyond the scope of this Bill. I can give the same undertaking as I have already given to Deputy Shatter, that I will have the point considered for inclusion in the next criminal justice measure to be sponsored by the Minister for Justice in pursuance of the commitments in the Programme for Government.

Mr. Shatter

I regard the Minister's response as totally unsatisfactory. What is proposed is to confer on the courts a discretionary power and not a power that would be exercised in every case. It seems to me that the Minister has argued against the case he is trying to make. Indeed, the arguments the Minister has come up with on this issue are a mirror image of the arguments the same Minister and his colleagues made in 1990 when they argued that we could not produce a Bill to allow for appeals against unduly lenient sentences. In fact, Sir, if I were to delay the House, which I do not intend to do. I could quote chapter and verse.

The first thing a Minister always lobs up when an Oppostion party Deputy comes up with a constructive suggestion is the constitutional implication. It is farcical the number of occasions Ministers lob this out as an objection. I am quite clear and from the legal advice I have received, there is absolutely no constitutional difficulty of any nature in the circumstances where someone had been the victim of violent or sexual crime about the courts making an order barring the person convicted of that crime from attending at their home. Let us put it in a very simple context: if there was a constitutional difficulty it would render unconstitutional the Family Law (Protection of Spouses and Children) Act, 1981, which the Supreme Court has considered in a number of cases. If a wife discovers that her husband is engaged in incest with their daughter she can bring barring proceedings under the 1981 Act and seek a barring order while her daughter is a minor so that her husband is barred from the home permanently and is barred from molesting or interferring with his wife and children at any time in the future.

The problem is that if someone over 21 years who has been the victim of incest while a minor gives evidence in court against her father, she cannot get a barring order — because it is only the spouse who can get a barring order under the 1981 Act — to keep the father away from her after he has served his term of imprisonment. They will have to do what the Minister suggests and bring separate civil injunction proceedings. It is absolute spurious nonsense to suggest that there is any constitutional difficulty with this, as it was also spurious nonsense to suggest in 1990, when Fine Gael proposed a Private Members' Bill to provide for appeals against unduly lenient sentences, that there was a constitutional difficulty with that. We have the same Constitution in 1993 as we had in 1990 and the Minister sees no constitutional problem with what he is now doing.

The Minister gave the lie to his argument in part of what he said. He acknowledged that there are circumstances in which people are convicted of violent crimes or sexual crimes where either all or part of the sentence is suspended by courts. Where the court grants a suspended sentence the judge will say the sentence is suspended on condition that you do not attend at or near the place of residence of the victim of your crime or you do not interfere with the victim of your crime. The perpetrator of the crime has the cloud hanging over him that if he does so attend he will be arrested and serve the rest of his sentence. That acts as a deterrent to perpetrators making a nuisance of themselves. The anomaly we have is that if someone is given a suspended sentence the courts can impose conditions to keep him away from his victim, but if someone is sentenced to a term of imprisonment and serves it the courts cannot at present impose conditions to prevent him from interferring or putting his victim in fear. The Minister wisely says that if they do come along and assault their victim they are committing a criminal offence and can be arrested. If someone is intent on assaulting his victim, the Minister says, no barring order will provide protection. If that were the case we should repeal the 1981 Act. Hundreds if not thousands of wives throughout the country have used that Act to provide protection for themselves and their children against violent husbands. Indeed, some husbands have used it to protect themselves against violent wives. It is a mechanism that actually works. The fear of imprisonment for breaching a barring order seems to exercise the minds of people who are violent. If the Garda see someone who is barred from the home walking up the driveway they have the power of arrest, which they would not otherwise have, and this means that the Garda respond more quickly and provide protection. They do not have to wait for the assault to take place, which appears to be what the Minister is suggesting should happen in these circumstances.

I regarded this particular amendment as a litmus test of the extent to which the Minister of State or his senior colleague, the Minister, would be receptive to constructive proposals to amend the legislation. The Minister of State in effect went on to say that he does not agree with this idea, that he will consider it but cannot do so in time for the Seanad debate but would do so when some other future Bill is being drafted in the Department of Justice. We heard the same waffle in 1990 on a Bill dealing with unduly lenient sentences which was introduced by Fine Gael.

We would not be debating this Bill today if it were not for the tragic circumstances of the Lavinia Kerwick case and we would not be rushing it through the House if it were not for the recent Kilkenny case. Are we to ignore the need for this type of protection, which will provide immediate peace of mind for victims, until somebody is seriously assaulted following the release of an offender from prison? In two or three years' time will a Minister have to introduce another emergency Bill to address the power being given in this legislation? We are trying to deal with this issue in a comprehensive way and it was unreasonable of the Minister to reject our proposal in the manner he did. His constitutional reasons are nonsensical and his exposition of what courts do when they suspend sentences proves that this type of provision is necessary. It invovles a judgment not alone on what an offender might do following his release but on what is necessary to provide peace of mind for the victim while the offender is in prison.

Human beings do not operate on the basis of living in a vacuum. The victim of a rape does not blissfully forget about the incident and about the offender for the five or six years he is detained in prison and suddenly start to worry the day before he is released. This is an additional pressure and stress which hangs over the victim, not alone during the trial but following the conviction and throughout the period of the offender's imprisonment. We should take account of that. There is no constitutional problem in doing so. The courts could exercise this as a discretionary power and I believe they would do so only in the most serious cases.

This matter should not be put on the long finger until there is another emergency which would result in the Minister of State or his senior colleague rushing into this House with another emergency Bill. The Minister would probably tell us with her hand on her heart that she suddenly recognises the existence of a problem — a problem about which Members of this House told her on a previous occasion — and will ride the media wave as if she were some type of hero because she suddenly discovers this great reality, similar to Archimedes discovering principles in years past. She would probably then ride off into the sunset when it comes to doing the real legislative work in the House. I will be pressing this amendment to a vote. I am disappointed at the Minister of State's response. It is less than incisive to the need in this area. Many women will be disappointed with it; indeed, the same applies to many men who want to see this House respond in a comprehensive way to the problem.

I stated yesterday that we are dealing with this in a piecemeal fashion. There is another reason for including the provision in the legislation. I do not have confidence that the Government will put in place proper psychiatric treatment services for those convicted of serious sexual offences and who threaten their victim about what they will do if the victim reports them to the Garda. I am not satisfied that the Government will put in place the necessary provisions and services within our prison system to ensure that people released following a sentence for a sexual offence will not haunt their victims.

The Government has a very bad record in this regard. It set up the Arbour Hill project and abandoned the operation approximately one and a half years ago. The people who had developed expertise in this area were dispersed through the service and we were told by the former Minister, Pádraig Flynn, as we are still being told, that the matter is being examined by a committee. I do not know what that committee will say in its report or what resources it might be given to implement its recommendations. I do not have confidence in it because history has shown that the past Government and its Ministers, some of whom are Ministers in this Government, did not act until a public tragedy was reported in the press, much of the reaction being for public relations purposes.

Ms McManus

I wonder if there is a direct line to Singapore, because the Minister should be asked for her views on this issue. I am somewhat taken aback at the Minister of State's response, but I thank him for complimenting me on my imagination. I am surprised he should put it down to my writing ability, small though it is. I believe imagination is the most important quality in a public representative and the lack of imagination displayed by the Minister of State is disturbing. He stated that he cannot envisage a way of protecting a victim. That is essentially what he said today.

Mr. O'Dea

I did not say that.

Ms McManus

That is the message I got from the Minister's response. He stated that the proposals from Deputies Shatter, Gilmore and I are unrealistic because legislation cannot be formed to provide for the need in these circumstances. The logic is that current barring orders do not have a purpose.

Mr. O'Dea

That is not true.

Ms McManus

The Minister should use his imagination and try to imagine what it is like to be a woman who is not necessarily being physically assaulted but is suffering psychological harassment and intimidation from a partner who is rapidly driving her insane. If he could put himself in such a woman's shoes he might be able to imagine a law that would prove to her that she does not have to put up with such treatment, that it is illegal and that the Garda should deal with it. That is apart from the question of serious assault which has been dealt with already.

The Minister also displays a lack of faith in the Judiciary if he believes that by giving the courts discretion to examine the matter and not automatically grant a woman the right to be protected in this way, that that power will be abused. I would be happy if the court had the right to protect the victim in this way and I am sure I speak for many victims in that regard.

If a woman has a barring or a protection order against her husband it is clear to the Garda that the problem is real and that there will be no ambiguity in regard to domestic violence. The Garda are often put in the invidious position of being called to a house where a domestic row is taking place, but there is no follow up in the courts. Very often the couple get back together again. This is a difficult problem for the Garda to deal with. However, if a barring order exists or the courts say that protection must be given to the victim, the Garda have a much clearer position in regard to the case. We do not have to test the bona fides of a convicted criminal on the broken bones of women. We have seen enough of that. We must use our imagination in regard to a victim who expects to be assaulted following the offender's release from prison or, if the Minister of State is pursuing the logic of his argument, having to experience assault before the perpetrator is brought to order.

Mr. O'Dea

Deputy McManus should not be so sensitive. I was only joking when I mentioned the point about imagination. I do not understand why Members of the Democratic Left take things so seriously all the time.

Deputy Shatter stated that his legal advice was that there was no constitutional problem with the proposal.

Ms McManus

Did the Minister say I have no imagination?

Mr. O'Dea

The Deputy has just accused me of that.

Ms McManus

Am I not right?

Mr. O'Dea

That is the Deputy's opinion and she is entitled to it.

Deputy Shatter said that his legal advice was that there was no constitutional difficulty in regard to the proposal. I am not in a position to take Deputy Shatter's legal advice. The Government is legally advised by the Attorney General and I will be consulting him about the constitutionality or otherwise of this provision. It is farcical for Deputy Shatter to come in here and make spurious arguments about barring orders. The Deputy knows well that the objection I am making is to future as opposed to present barring orders. I have reservations about a system whereby the courts are given power to prejudge the position in five, six, seven or maybe ten years' time, and it is reasonable to have such reservations.

All cases mentioned by Deputy Shatter relate to circumstances where the current behaviour of the offender is in question. I have reservations about the courts, in current circumstances, prejudging the behaviour of a person in several years' time. I have said in reply to Deputy McManus that I will consider a protection order or barring order for the type of case referred to in the proposed amendment, namely, a case analogous to the Kilkenny case. The law can be changed to provide for such a case but this is not the appropriate way to do so. I cannot undertake to make the changes in this legislation but I will consider all the arguments and points of view put forward. I was very struck by the plight and fear of the victim in this case, and I say that genuinely. I still believe that my suggestion to extend barring order or protection order legislation to the type of case in question is a more desirable approach.

Mr. Shatter

That is what the amendment suggests.

Mr. O'Dea

No, it is not. I am talking about making an application for a barring order or protection order when the individual is nearing the end of his sentence, based on his likely behaviour at that time. Deputy Shatter's proposal suggests that a decision be made on the basis of current circumstances. I know the Deputy is not saying it should be obligatory on the courts to make such a decision; it is discretionary. Nevertheless we would be giving discretion to the courts to make a decision judged on what a person's future behaviour might be, particularly after a long term in prison, and I have reservations in that regard. Deputy McManus may say I am not showing much confidence in the Judiciary. That is not the case but the Judiciary are only human. Judges are not omnipotent; they do make mistakes.

Mr. Shatter

The Minister's proposal would result in the victims of sexual offences, if they were in genuine fear, remaining in fear while the perpetrator is in prison and in order to get a barring order they would have to go through a further trial, recounting their experiences, upon completion of the prison term. That is not acceptable and I want to put the matter to a vote.

Amendment put.

The Committee divided: Tá, 39; Níl, 67.

Tá

Barrett, Seán.
Boylan, Andrew.
Bruton, John.
Carey, Donal.
Clohessy, Peadar.
Connaughton, Paul.
Connor, John.
Crawford, Seymour.
Currie, Austin.
Gregory, Tony.
Harney, Mary.
Harte, Paddy.
Higgins, Jim.
Hogan, Philip.
Kenny, Enda.
Keogh, Helen.
Lowry, Michael.
McGrath, Paul.
McManus, Liz.
Molloy, Robert.
Deasy, Austin.
Deenihan, Jimmy.
De Rossa, Proinsias.
Doyle, Avril.
Dukes, Alan M.
Fitzgerald, Frances.
Flanagan, Charles.
Fox, Johnny.
Gilmore, Eamon.
Nealon, Ted.
Noonan, Michael. (Limerick East).
O'Donnell, Liz.
O'Keeffe, Jim.
O'Malley, Desmond J.
Owen, Nora.
Quill, Máirín.
Rabbitte, Pat.
Shatter, Alan.
Sheehan, P.J.

Níl

Ahern, Michael.
Andrews, David.
Aylward, Liam.
Bhamjee, Moosajee.
Bhreathnach, Niamh.
Bree, Declan.
Brennan, Matt.
Broughan, Tommy.
Browne, John (Wexford).
Burke, Raphael P.
Callely, Ivor.
Costello, Joe.
Coughlan, Mary.
Davern, Noel.
Dempsey, Noel.
de Valera, Síle.
Doherty, Seán.
Ferris, Michael.
Fitzgerald, Brian.
Flood, Chris.
Foley, Denis.
Gallagher, Pat the Cope.
Gallagher, Pat.
Haughey, Seán.
Higgins, Michael D.
Hilliard, Colm M.
Howlin, Brendan.
Hughes, Séamus.
Jacob, Joe.
Kavanagh, Liam.
Kemmy, Jim.
Kenneally, Brendan.
Kitt, Michael P.
Kitt, Tom.
Lawlor, Liam.
Lenihan, Brian.
Leonard, Jimmy.
McDaid, James.
McDowell, Derek.
Moffatt, Tom.
Morley, P.J.
Moynihan, Donal.
Moynihan-Cronin, Breeda.
Mulvihill, John.
Noonan, Michael. (Limerick West).
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Rourke, Mary.
O'Shea, Brian.
O'Sullivan, Gerry.
O'Sullivan, Toddy.
Penrose, William.
Power, Seán.
Ryan, Eoin.
Ryan, John.
Ryan, Seán.
Taylor, Mervyn.
Upton, Pat.
Wallace, Dan.
Wallace, Mary.
Walsh, Eamon.
Walsh, Joe.
Woods, Michael.

Tellers: Tá, Deputies E. Kenny and Keogh; Níl, Deputies Dempsey and Ferris.

Amendment declared lost.

Section 1 agreed to.

NEW SECTION.

An Ceann Comhairle

Here we come to amendment No. 3 in the name of Deputy Shatter. I observe that amendments No. 3, 18 and 19 form a composite proposal and amendments No. 17 and 20 form an alternative composite proposal. I suggest therefore that we discuss amendments Nos. 3 and 17 to 20, inclusive, together. Is that satisfactory? Agreed.

Mr. Shatter

I move amendment No. 3.

In page 4, before section 2, to insert the following new section:

"2.—Section 1 of the Punishment of Incest Act, 1908 (as amended by section 12 of the Criminal Law Amendment Act, 1935), is hereby amended in subsection (1) by the deletion of `to be kept in penal servitude for any term not less than three years, and not exceeding seven years, or to be imprisoned for any time not exceeding two years with or without hard labour' and the substitution of `to a term of imprisonment not exceeding twenty years'.".

My amendment seeks to insert a new section into the Criminal Justice Bill, 1993 to expressly address the issue of the maximum sentence currently being imposed by the courts for the offence of incest. The section I propose being inserted is as follows:

2.—Secton 1 of the Punishment of Incest Act, 1908 (as amended by section 12 of the Criminal Law Amendment Act, 1935), is hereby amended in subsection (1) by the deletion of "to be kept in penal servitude for any term not less than three years, and not exceeding seven years, or to be imprisoned for any time not exceeding two years with or without hard labour" and the substitution of "to a term of imprisonment not exceeding twenty years".

The other two amendments to which the Chair referred are simply consequential amendments. This amendment is designed to increase the maximum sentence the courts can impose for the offence of incest under the Punishment of Incest Act, 1908, from a sentence of seven years to a maximum of 20 years.

This proposal is the same as that contained in the Private Members' Bill I published on behalf of the Fine Gael Party on 3 March. It was a response to the obvious legal anomaly that arose in the recent Kilkenny court case. Although other charges were brought in that case, because the victim was a daughter of the person convicted the trial judge felt constrained in law to regard the case as one of incest in the context of sentencing. There has been a great deal of academic debate during the past seven or eight days as to whether the trial judge was right or wrong. Indeed, a number of Ministers has engaged in that type of debate. I was concerned, rather than leave the matter to be debated by legal academics or to be resolved at a future date in some other court hearing involving some other unfortunate victim, that the law be changed so that the courts would have a discretion to impose longer sentences. The amendment is designed to do that.

Following the publication of the Fine Gael Bill, the Minister for Justice indicated her willingness to consider further changes in the law when she addressed the House yesterday before flying to Australia. She indicated she had an open mind on what the maximum sentence should be and thought something between 15 and 20 years would be appropriate. The Minister promised to listen to what other Members had to say.

I welcome the fact that the Government amendment seeks to achieve the same result as the Fine Gael Private Members' Bill and the amendment I have proposed. The reason I though it right that this provision be included in section 2 rather than at the back end of the Bill is that the later provisions deal with the issue of appeals against unduly lenient sentences. In the context of an amendment to a specific Act in relation to a specific maximum sentence that can be imposed, it should be made clear at the outset what the maximum penalty is. Obviously, there will be many cases before the courts in which the maximum sentence may not be handed down for particular reasons, but, equally there will be cases in which judges would consider imposing the maximum penalty. Judging by the horrors portrayed in it, it would seem it was one in which a judge would have been expected to give very serious consideration to imposing the maximum sentence if the law had been changed prior to that case commencing.

I hope the Minister will have the decency to acknowledge that the proposal brought forward by Fine Gael eight days ago was a constructive and well drafted one to address this issue. In the 24 hours following the publicity given to the tragic Kilkenny case, members of the Government were more concerned to implicitly attack the judge indicating there were other sentences that could have been imposed. Much of that comment lost sight of the fact that the judge, be he right or wrong, said he felt constrained to regard that case as one to which the maximum seven years penalty applied. There was some information which indicated that the Punishment of Incest Act, 1908, applied only to people over the age of 15 years: that is not true, it applies to all cases of incest. People can be charged and convicted of having sexual relations with children under the age of 15.

The Punishment of Incest Act deals with the offence of incest. It is right that the penalties should be increased. It is right that this House should set down a marker that all sexual offences are appalling but incest is one of the most appalling because it is a person in parental authority who abuses that authority to abuse his own child. That abuse can destroy that child mentally for life. Many adults who were victims of incest in their childhood, have not recovered from that experience. They experience great difficulty in forming relationships with other people by virtue of what happened. This House should set down a marker as to how seriously we regard such an offence. The Minister should take on board my amendment. If he insists on proceeding with his amendment it appears that both will have the same effect. I am pleased we have reached the stage where we are addressing this issue and where we can agree on a change.

Mr. Gilmore

I support these amendments which propose to increase the maximum sentence for incest. Will one of the proposers of the amendment explain the reason for the deletion of the minimum sentence as proposed in the original draft? I support the principle because there is a question of the punishment fitting the crime. Like many people I was surprised at the leniency of the sentence in the Kilkenny case. I know the Minister made the point that there were other options open to the judge in that a longer sentence could have been imposed. Nevertheless, the maximum of seven years for incest is out of proportion with the crime and reflects a dated attitude to incest. It seems to imply that a sexual offence committed within the family by somebody who is in a position of power over the victim and who is in a position of trust is in some way less of a crime. The crime of incest is appalling and we need to send a clear message to the courts that we wish to have longer sentences for it. The way to do that is by adopting the amendments before us which provide for the maximum sentence of 20 years.

A question was raised as to whether the decision in the Kilkenny case was open to appeal. In an article in The Irish Times of 1 July 1990, Paul Carney, senior counsel, as he then was, made a point in relation to the Rape Bill which was before the Dáil. He said the Bill, as he put it, by a side wind would enable a prosecution to appeal sentences or to lodge an appeal to the Supreme Court. He made the point that section 9 of that Bill provided that offences would be tried by the Central Criminal Court rather than by the Circuit Court, and that as the Central Criminal Court was the High Court exercising its criminal jurisdiction Article 34 of the Constitution provided for an appeal to the Supreme Court, and there were no exemptions made from that. This raises the question as to whether even under the existing legislative framework the possibility of an appeal might have been possible in the Kilkenny case.

I do not think the issue before us now relates to the finer points of whether an appeal was allowable, how it could be achieved, etc. The problem we have been bluntly faced with is that the penalty for incest up to now has clearly been inadequate. It is a hangover from a time in the past where, presumably because members of families were considered to be the property of the parents or husband, as the case may be, a crime committed within the family was regarded as less of a crime than if it was committed outside of that context. The anomaly needs to be redressed. The crime of incest is an appalling one which I find very difficult to comprehend and the level of sentence has to reflect the seriousness of it. I support the proposal that the maximum sentence should be increased to 20 years.

Miss Harney

I support Deputy Shatter's amendment and the similar amendment in the name of the Minister. Yesterday the Minister indicated that she wanted to hear our views on this issue and that she would bring forward her own amendments. I accept that that has happened, although she did not hear our views.

Like Deputy Gilmore, I query why, in both amendments, there is a proposal to abolish the minimum sentence. As I said yesterday, I am not a great advocate of mandatory sentencing, I do not favour it in principle. To a certain extent minimum sentencing is in the same league. Deputy Shatter did not say why he believes the minimum sentence should be abolished. I am not necessarily saying that the minimum sentence should be retained, but I should like to hear the Minister's arguments as to why he thinks it is not necessary to have a minimum sentence. Imposing a maximum sentence is all very fine but it will rarely if ever be used. This is not to say that the law should not provide for a maximum sentence; of course it should do so.

Deputy Gilmore referred to the current powers of the Director of Public Prosecutions. Yesterday the Minister said that the Director of Public Prosecutions has the power to appeal to the Supreme Court but that he has never exercised that power. I ask the Minister to clarify that matter. If the Director of Public Prosecutions has not exercised an existing power one wonders if he will exercise an additional power given to him under this Bill. I am worried that we are building up an expectation in the community that in cases where there is a perceived lenient sentence there will be a mechanism to put that right because there will be an appeal procedure. This may not necessarily be the case — even though the procedure may be there it will not be very helpful if it is not used. In view of the fact that an existing power of that kind exists already but has not been used, we need to be careful that we do not build up an expectation which leaves all of us with egg on our faces if we give a power to someone which he may never use.

Mr. O'Dea

Amendment No. 17 proposes to increase from seven to 20 years the maximum penalty for incest involving a female of 17 years and upwards. In cases where the girl is under 15 years the maximum sentence is life imprisonment. Yesterday the Minister said she would take into account the views of the House on the appropriate increase in the seven years maximum sentence. She said that she believed the maximum sentence should be increased to 20 years. There was general agreement on that point, and it accords with the limits proposed both in Deputy Shatter's recent Private Members' Bill and in his amendment No. 3 here. There is also a provision in the 1908 Act which makes it an offence for a female of 16 years or over to consent to incest and which allows for the same maximum penalty of seven years. I do not propose disturbing that limit as it seems that different considerations apply in such cases.

The Deputies raised a number of queries. Deputy Gilmore asked why the minimum sentence of three years, as provided in section 1 of the 1908 Act, was not being retained. I understand that at the time of the enactment of that Act there was a distinction between imprisonment and penal servitude. That distinction has since fallen into disuse. At that time the Parliament, in providing for sentences of penal servitude, had to lay down a maximum of three years imprisonment so that it would come under the heading of what was understood at the time to be penal servitude.

With regard to appeals, as Deputy Harney correctly said, Article 34 of the Constitution gives both sides the right to appeal decisions of the High Court to the Supreme Court in all cases. There is a doubt as to the right of the prosecution to exercise the right of appeal against a lenient sentence under Article 34 as the sentence will sometimes have been handed down by the Central Criminal Court, which is the High Court exercising its criminal jurisdiction. I imagine that it was not intended that there be a right for the prosecution to appeal a sentence handed down by the High Court exercising its criminal jurisdiction because the criminal jurisdiction of the Circuit Criminal Court is also very extensive. As I understand it, Article 34 would not apply in those circumstances.

Deputy Harney wanted to know if any appeals had been taken. The Director of Public Prosecutions' office has just been contacted by phone and although my officials did not speak to him, his deputy said that he is not aware of any case where an appeal has been take by the prosecution against a lenient sentence.

Mr. Shatter

First, I thank Deputies Harney and Gilmore for supporting my amendment. In effect, what the Minister has said is correct — the distinction between penal servitude and imprisonment has long fallen into disuse and has ceased to be relevant. This means that the provision in the 1908 Act dealing with minimum sentencing has long since fallen into disuse and is not relevant. It was my perception that once we increased the penalty to this level it would allow the courts to exercise a discretion and would make it quite clear that this House intends that a very serious penalty be imposed in cases of this nature. I think the concept of minimum sentences has largely been discredited nowadays and is not seen to fulfil any real function.

I am pleased we are in agreement about this issue. Am I to take it that the Minister is agreeable to accepting my amendment? It does not seem that he has any objection to it. I do not want to hold up the House as I am very anxious that we proceed to discuss some of the other amendments which we may not otherwise get to.

Mr. O'Dea

I cannot accept Deputy Shatter's amendment. I will move my amendment at a later stage. There is a technical defect in Deputy Shatter's amendment in that it does not propose to delete the words "at the discretion of the court". Those words are not necessary any more as we are no longer talking about a choice between two years and seven years as was the case hitherto; we are simply imposing a new maximum sentence.

Mr. Shatter

I do not want to delay the House but it seems that we are once again dealing with Alice in Wonderland stuff. We need to move away from the position where Ministers feel they have a ministerial prerogative in the area of legislation and that in some way their ministerial virginity will be threatened if they take on board a proposal put forward by an Opposition Deputy. The Minister is making the same proposal as I have made. He may wish to be childish about the matter but I will not call a vote on the issue as to do so would merely prevent us from discussing other issues. However, in the context of the so-called technical objection, if the court can impose a maximum sentence of up to 20 years imprisonment — clearly it will do so at its discretion — it has the discretion to impose a sentence of three, five, ten or 20 years. There is no reason the Minister cannot take on board my amendment beyond the usual knee-jerk political reaction by people who are appointed to Government and who seem to be constitutionally unable to take on board what is proposed by Opposition Deputies.

I had hoped the Minister might have the generosity to accept the amendment since his amendment is drafted on the same basis and derives from a Bill which Fine Gael published. The purpose of the exercise is not to score points as to whose amendment is taken on board but rather to make meaningful changes in the law.

Mr. O'Dea

That is being done.

Mr. Shatter

Since the Minister will not accept amendment No. 3, I will accept his amendment No. 17. I do not suffer from the same psychological difficulty in accepting proposals from colleagues that seems to be endemic in Ministers and Ministers of State.

Amendment, by leave, withdrawn.

NEW SECTION.

Miss Harney

I move amendment No. 4:

In page 4, before section 2, to insert the following new section:

"2.—Notwithstanding any rule of law or practice to the contrary, it shall be lawful for the prosecutor or Counsel for the prosecutor to address any court which is about to impose sentence, on the nature and severity of such sentence.".

The purpose of this amendment is to give the Director of Public Prosecutions, or counsel on his behalf, power to make a plea to the court regarding what the director believes to be an appropriate sentence for a particular crime. It is normal for defence counsel to refer to appropriate penalties for their clients when convicted. Prosecuting counsel do not have this power. The Director of Public Prosecutions will be aware of the main facts of the case and he or his counsel should be in a position after the jury has brought in a verdict to recommend an appropriate sentence. This might avoid the necessity for an appeal. It is a reasonable amendment. In cases such as the one to which reference has been made, the director would have power to inform the trial judge as to what he would consider an appropriate sentence. The trial judge would not have to accept that recommendation, but the plea would indicate to the judge that the director took the case very seriously and that if his wishes were ignored the director might appeal an unduly lenient sentence.

The Minister might refer to the matter of plea bargaining. I understand that in many cases the prosecution enter a plea bargaining process with the accused to secure a plea of guilty and thereby minimise the effect on the victim. Plea bargaining is not formally recognised in our system, but the trial judge will be aware that this has taken place and will take it into account when imposing sentence. That happens in quite a number of cases. Of course it is preferable that a person guilty of an offence should plead guilty when charged because it minimises the effect on the victim.

Deputy Shatter spoke yesterday about making our judicial system victim-orientated, particularly in the area of sexual offences. Most women I know would prefer to hide the agony than to go through a rape trial. I have spoken to counsel who have been involved in rape trials and representatives of the Rape Crisis Centre and they tell me it is the most horrific experience, despite improvements in the law. It is an extremely humiliating and appalling ordeal which many consider worse than the rape itself. We need to encourage persons charged with these offences to plead guilty when this is the case. That must have a bearing on the sentence subsequently imposed. I would be interested to hear the Minister's comments because I understand from legal practitioners that ours is one of the few countries not to recognise formally the process of plea bargaining. It is done behind closed doors and, because of the independence of the Judiciary, it is felt that this is the way it should be done. It has a major impact and may well have been a factor in the trial judge's decision in the most recent case, although I do not know this as a fact.

Mr. Shatter

I adverted yesterday to the fact that one of the difficulties in our criminal justice system is that following a conviction the judge will often hear a plea in mitigation on behalf of the offender, but the prosecuting counsel acting on behalf of the State steps aside and does not make any plea in relation to sentence. That can mean that a judge is not fully aware of the impact of an offence on a victim. Even if he is aware, the main issue debated before the court is the degree of mercy that should be shown to the offender.

Later sections provide that the judge will learn of the effect on the victim. To anybody who looks at the criminal justice system from the outside, it has always been regarded as a wonderment that the prosecuting counsel does not have a role in seeking a sentence of particular severity and that it is left to the judge in the context of whatever submissions are made on behalf of the offender. Deputy Harney's proposal is that the prosecuting counsel should address the court on that issue. That proposal has some merit.

I sought to approach the matter somewhat differently. My amendment No. 6 was ruled out of order because one aspect of it involved a charge. I intend to table a modified version of the amendment on Report Stage which would not have such an implication. I had sought in amendment No. 6 to make provision for the court, following a conviction, to hear evidence specifically from the victim regarding the type of sentence he or she would like to see applied. The court would then get a balanced view in that there would be evidence from the victim as to what sentence should be imposed and a plea in mitigation on behalf of the offender. It would probably be more appropriate that the victim would be represented by counsel at the time sentencing takes place and that counsel would make the plea for severity of sentence. The court would hear whatever evidence is relevant from the victim.

One of the anomalies under this Bill is that in certain circumstances offenders will be automatically provided with legal aid under the criminal legal aid system but victims are not given any aid under that system. Following a conviction, a victim should be entitled to have representation through the criminal legal aid system where a serious offence is involved in order to make submissions on his or her behalf. That would seem to be a way of facilitating the operation of other provisions designed to assist the court in obtaining information about the effect of an offence on a victim. I would prefer the latter approach. As it is clear that the Government will not provide the financial means for the representation of victims, serious consideration should be given to allowing prosecuting counsel to make a plea with regard to severity of sentence. Victims should be heard on that issue. In many cases a victim will want the maximum sentence imposed on the offender. However, that is not always the case. There may be special circumstances surrounding a particular offence and special insights that someone who has actually suffered the assault is aware of and may be willing to tell the court in the context of the court considering what is an appropriate sentence. I would have preferred the type of approach contained in amendment No. 6, but I would see a degree of merit in Deputy Harney's proposal. It seems that the general public are somewhat taken aback at the concept that the State prosecutes, obtains a conviction and then stands back on the issue of sentencing and leaves it, in effect, between the judge and the legal representatives of the convicted offender. I would be interested to hear what the Minister has to say in regard to this amendment.

Mr. Briscoe

I would certainly be very sympathetic to this amendment. The points made by Deputy Shatter are notorious. The people of this country feel it is about time that they saw more justice and less law operating. The prosecuting counsel should have a right to suggest sentences. This happens in other countries. I would ask the Minister to view this amendment sympathetically. The mood of the people is for more justice. To expand on it, the feeling at the moment is that the judges have had it very much all their own way and because of the disparity in sentencing etc. that has happened lately I would ask that the Minister view this amendment sympathetically. I certainly feel very supportive of it. It is a good amendment and we should be as constructive on this side of the House as we ask people on the Opposition side to be. This is a very constructive amendment and I urge the Minister to accept it.

Mr. Gilmore

First, let me compliment Deputy Briscoe on his very generous remarks in relation to this amendment. I hope the Minister of State will respond positively to what is emerging as the wish on all sides of the House that this amendment would be included in the Bill. I certainly support it.

One of the difficulties, particularly in the area of sexual offences, is the extent to which victims of sexual offences feel that they lose control of the whole situation once it is reported to the Garda, the charges made, the prosecution brought and it goes into court. I suspect that that is one of the reasons many victims of sexual offences do not report it in the first place. One of the questions that has been bedevilling people has been why cases are not being reported, why something that has been going on has not been reported and why it takes so long for a particular case to get to court. It is because there is a very understandable reluctance on the part of victims to bring the cases to court. One of the reasons for that is the extent to which the victims lose control of the situation in court and very often, particularly where the case is being contested, the victim is subjected to very difficult cross-examination and so on.

I tabled amendment No. 5 seeking to give victims the right to independent legal advice and assistance while the case is being processed in court. It was ruled out of order on the grounds that it would involve a cost to the State. I do not want to challenge the Ceann Comhairle's ruling on that, but I am surprised that it was ruled out of order because I deliberately used the term "independent legal advice" rather than "free legal advice". However, the decision was made to rule it out of order. My purpose in submitting it was to try to provide for a situation where the victim of a sexual offence, who in the vast majority of cases is a woman, having reported the case finds herself going to court into what is a very intimidating and very male institution. She very often feels alienated by the whole experience in court. I thought that at a minimum the victim should have some independent assistance in court.

I would agree that the prosecution, and indeed the victim, should have a say, and at least be able to make a case to the court as to what the appropriate sentence should be. One of the things that horrified people about the Lavinia Kerwick case was that, the case having being brought to court, not only had she to endure the offence, the whole trauma of bringing the case to court, but then the laudatory statements which were made in court about the offender without any corresponding consideration being giving to the victim and the impact of the whole offence and its aftermath on her.

It is time that there was a provision that at the very least would allow the prosecution to make a case to the court about sentencing. I would go further, because I think it is important that the victim should be involved in a meaningful way in the whole process. That could be done by the provision of legal assistance for the victim so that she does not find herself being a spectator during a very traumatic experience in a very intimidating environment. Courts are intimidating places. They are doubly intimidating if one has already had a very difficult personal experience. To then find that that personal experience is in this kind of adversarial way in an institution which is male dominated and which is based on very archiac practices is very traumatic indeed. I think the Minister should accept the amendment.

Mr. O'Dea

Plea bargaining is a question for the prosecuting authority in this country, namely, the Director of Public Prosecutions, who is independent of the Minister for Justice and independent of the Oireachtas. All I can hope to do in relation to what Deputy Harney has said is to pass on her comments to the Director of Public Prosecutions and inform him that I personally am sympathetic to what she is saying.

There is no doubt that some of those trials are tremendously traumatic for the victims. I know of cases where the victim has been more traumatised by the experience of having to give evidence at the trial than she was by the original assault. Last year we brought in the Criminal Evidence Bill, which in some way eases the trauma for certain categories of victim. Anything further we can do in that regard we should do.

In relation to the amendment before the House, basically it is proposing to give prosecutors an active role in the sentencing process. I am informed that the Judiciary are not too happy about it. It is seen as an encroachment by the Executive in an area which the Constitution has reserved for the Judiciary.

I have listened carefully to the views on all sides of the House, including my own side. I am conscious also that in most continental systems no sentence is imposed until the views of the prosecutions have been obtained. Our tradition is different. As I understand it, neither here nor in the video counsel for the prosecution say anything about the sentence that should be imposed because both countries have a common law tradition. That, however, is no reason for not changing our situation here now. I cannot undertake to do so today, unfortunately. I shall have to give the matter more thought and I shall have to have more consultations. I undertake to the House, however — and this is the most I can possible do today — to give the matter very serious consideration between now and the debate in the Seanad.

Miss Harney

I thank the Minister, Deputy Briscoe and other spokespersons for their general support of my proposal. The Minister said earlier that he was free to make all decisions the Minister might make, but I wonder whether that is really the case.

My proposal seeks to formalise a procedure that is carried out behind closed doors at present. The Minister said that he would pass on my comments about plea bargaining to the Director of Public Prosecutions. It is my understanding that in many cases of this kind the prosecution, presumably acting on the instructions of the DPP, goes to the defence and seeks to have the accused plead guilty in order to minimise the impact; or other things might happen, and the judge will be made aware of that and that is taken into account at the time of sentencing — obviously, someone who pleads guilty will face the imposition of a sentence or a fine. The judge will be aware of that process, but it has all happened quietly, behind closed doors. Under this proposal I am seeking to bring the process out into the open so that the public will be aware, the trial judge will be publicly aware and the accused and the victim — the victim being very important — will be aware that the prosecuting counsel made a plea for a particular sentence.

If formalising that process under the Bill were considered to be impugning the integrity and the independence of the Judiciary and if the Director felt that he or she might be going beyond his or her duties, the Director certainly would not make appeals against decisions either. If the Director were not to use this minimum power and ask counsel to indicate what the appropriate sentence might be, the Director certainly would not use the power being given to appeal sentences considered unduly lenient. My proposal would in many cases avoid the necessity of a 28 day period and all of the paraphernalia and work attached to the Director seeking to make a decision about an appeal, because great care would need to be taken and appeals would not be taken very often. My proposal would minimise delays, workload and bureaucracy and would also demonstrate to the victim and everyone else what the Director feels is an appropriate sentence in particular circumstances.

I advise the Minister of State, who is in the Chamber, that I am reluctant to let this amendment go. I want to be reasonable in this debate but I feel that this amendment, though an innocuous one, is important. When the Minister said earlier that he might accept amendments I considered that he would probably accept this amendment, because the issue is really no big deal. To be quite honest, I was astonished that the measure I propose is not already followed in practice. I did not realise that until made aware of the fact by practitioners of the law. Because this amendment is so innocuous on the one hand but could on the other hand make a fair impact and could bring out into the open things that are happening privately behind closed doors without the knowledge of the victim or the public, I do not understand why the Minister is being so unreasonable. If the Minister would at least give me a guarantee that on Report Stage this afternoon he would consider a provision along the lines of this amendment, I would let this go. However, if the Minister is not able to give me such a guarantee I shall not let this issue go because it is my feeling that he is being unreasonable.

Mr. Briscoe

I should like to emphasise once more my support for this amendment. It seems to me that most of the legal profession other than those who are judges would welcome such an amendment being brought into law. Some years ago I was in a debate with a judge before some students. I am not a lawyer myself and I spoke about there being a lack of justice and too much law. The judge, who was a very senior judge, told me that it was the job of the legislators to give the Judiciary the laws and it was then the job of the Judiciary to carry out those laws. Here we have an opportunity to give the judges the law. We have an opportunity to tell the judges that this is a law that the Legislature, the people who are elected to represent the people of this country, give to them to implement.

The Minister should be courageous and accept the Deputy's amendment here and now. There would be unanimous support throughout the party for making this provision legislation. I could understand the Minister if he were to say that he has to come back to the House on this issue on Report Stage, but I would prefer him to take his courage in his hands and accept the amendment. The Minister has said that he also is sympathetic to the amendment so it is my hope that he will feel able to accept it.

Mr. Shatter

I would shout "Hallelujah" if the Minister were to prove me wrong, but, along with Deputy Harney, I suspect that today the House is engaged in something that is slightly approaching farce. That is probably not the fault of the Minister of State, I feel that the fault lies with the Minister for Justice. If the Minister herself were in the Chamber there would be a possibility of some amendments being accepted. I realise that the Minister of State probably has to report back to the Minister before the debate in the Seanad and before he can take on board amendments. I deeply regret that the Minister appeared to have a great anxiety about the Bill and a sincere desire to process it and then flew off into the sunset yesterday.

The legislation is being dealt with in the wrong way. It is my opinion that Committee Stage and Report Stage should not be taken today; everything that has happened in the House since 11 o'clock this morning tells me that that is wrong.

The Minister of State is in a very unfair position. First, he has been left to carry the debate, yet he may not have the authority to accept amendments, although he tells us that he has. Second, the Minister conveyed the impression that the debate was of huge concern to her and all Stages of the Bill are to be passed today under circumstances in which, if amendments are tabled, the Minister of State does not have the time or the capacity to get full and comprehensive advice on them — if we are to take what he tells us at face value. It is unfair to the Minister of State and it is unfair to the House to be put in this position. The passage of the legislation will not be hastened because it is clear that issues will have to be raked over in the Seanad, and if changes are made in the Seanad the Bill will come back to this House. It would have been much better had the Minister for Justice been less economical with the truth and more up front with Members of the House. Second Stage of the Bill should have been taken yesterday and Committee Stage and Report Stage could perhaps have been taken the week the House resumes after the Saint Patrick's Day vacation. If that had been agreed, the Minister would have had more time to consider amendments and the House would have been able to engage in a real Committee Stage in which real change could have been effected.

I am always interested in the labyrinthine digging that the Minister or officials on the Minister's behalf undertake to discover reasons that amendments tabled by any Opposition Deputy should not be accepted. I have probably suffered more than most in that regard. I wish that the public service did not regard it a duty to find reasons that amendments should not be accepted. Certainly, if ever I find myself on the opposite side of the House I shall give a brief to civil servants that when Opposition Deputies table amendments I want to know positively whether the amendments are worth accepting — I do not want people to waste their time producing reasons for not accepting amendments.

In fairness to Deputy Harney's amendment, the reason given by the Minister for not accepting it was so extremely threadbare that it is extraordinary that the Minister would refer to it. The Minister quite rightly said that in continental Europe the prosecuting authorities take a different approach. There is a different approach on behalf of the prosecuting authorities in the United States as well and in other common law jurisdictions. Our system is a throwback to British colonial times, and the only reason for doing things as we do them, in the context of the prosecuting counsel not making a plea as to the type of sentence that should be imposed, is that we still labour under the shadow of the British colony and slavishly apply the traditions of British law unless someone gives us a kick in the backside and we are forced to change our approach. The reason prosecuting counsel do not make a plea for a particular sentence is that that is the tradition of the British legal system, which we inherited in 1922, a tradition that in my opinion has no particular relevance or merit in the administration of the criminal justice system. I do not understand the way in which a prosecuting counsel making a plea for the imposition of a harsh sentence is in any way treading on the constitutional path of the Judiciary any more than is the convicted person's counsel doing so making a plea for amelioration of sentence.

I suppose the House should welcome the fact that the Minister is prepared to accept the proposal. It is my hope that he will also consider the proposal that in the context of a particularly serious crime a victim should not only be heard on sentence but should also be represented to be heard on the issue. We need to discard the remaining cobwebs of the British colonial past that dwell in the inner regions of our criminal justice system and put our own stamp on the type of system we want to see in place.

Mr. O'Dea

I am not saying that I would not accept the proposal. What I said was that I am not accepting it today. It constitutes quite a revolutionary change in the system which has operated here since Independence. It is not just a question of following the British system. There is a fundamental distinction between ourselves and the British, namely, we have a written Constitution which makes the Judiciary independent of the Executive, whereas they do not. Therefore, it would be much easier for them to change the system than it would for us. Having said that, I repeat that I am sympathetic to the proposal. I will give it serious consideration. I have already said that I am unhappy with the arrangement for the taking of this Bill but that is something outside my control. All I can ask is that the House take my word when I say I will consider this matter.

Miss Harney

I will take the Minister's word and I will withdraw the amendment. The Bill will be debated in the Seanad in two or three weeks' time and perhaps the amendment can be moved there.

Mr. Briscoe

That is very understanding of the Deputy.

Amendment, by leave, withdrawn.

SECTION 2.

Question proposed "That section 2 stand part of the Bill".

Miss Harney

I have a question on section 2. I raised this matter on Second Stage yesterday and it relates to amending the Director of Public Prosecutions Act, 1974 which makes it an offence to communicate with the DPP, presumably with a view to lobbying him to take or not to take a prosecution. This extends it to apply that same provision to appeals.

I asked yesterday what constitutes a communication. Does it involve a telephone call, a letter or, for example, if a newspaper editorial were to report, following what they regarded as an unduly lenient sentence, that the sentence was appalling and that the Director of Public Prosecutions should use his powers of appeal, would that be considered a communication? If a Minister for Justice or Deputies were to voice their outrage at a particularly lenient sentence, would such a public statement constitute a communication? The DPP is not a hermit and he will be aware of these statements. It is my view they would represent communications, although they are not formalised in the sense of one person writing a letter to another or making a telephone call. I ask the Minister to clarify that. I also ask would the Minister envisage that it should be contempt of Court for somebody to publish such a suggestion during the 28 day period the DPP has to decide on the question of an appeal?

It is my view that the DPP would come under enormous public pressure. I realise that his is an independent office. However, if what are perceived to be unduly lenient sentences are imposed, and they generate the mass public reaction witnessed in the most recent case involving newspaper editorials and media coverage generally, and if a Director of Public Prosecutions does not act in those circumstances, I envisage at some future time a Minister for Justice stating that the law has to be changed to provide for the removal of the power of appeal from the DPP. Alternatively, it may necessitate a semi-political involvement in the decision as to whether to appeal. I do not know whether the Minister understands the point I am making but to some extent we are bringing in this legislation to allay public fears that no action can be taken when these lenient sentences are imposed. If power is given but is not exercised, or is exercised 20 years from now, we will in the meantime have circumstances where people will feel that the power is not strong enough or that there is an inadequate political dimension to it. I am not saying I favour that but I am concerned about the nature of the communication and whether there will be any attempt made in the period intervening between the decision of the court and the 28 day period in which an appeal can be lodged to prevent the publicising of the case. In that way we would not have this mass public outcry which one way or the other has to influence a Director of Public Prosecutions. Anybody reading the newspapers is influenced by that. One might be influenced to do or not to do something but reading newspapers does influence our thinking. That is how we are informed, how we educate ourselves and how we reform and change our minds.

In relation to the section, may I ask the Minister, where the DPP decides not to appeal a particular case, would he envisage that without prejudice to the independence of the office, the Director would make a short statement as to why, having read the transcript and studied the case, he felt on balance that the right decision had been made? If the DPP does not give an explanation for his decision we may then have the worst of all worlds.

Mr. Shatter

I have particular questions about the section, and how it may work, that perhaps the Minister could respond to. I have said for a long time that I want to see this power in place and exercised. I am not sure how it will work in practice. Subsection (1) of section 2 says:

If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

How will it be conveyed to the Director of Public Prosecutions as to whether a sentence is unduly lenient? Who will communicate that information to him? Presumably prosecuting counsel will simply inform the DPP. Never having been a prosecuting counsel I am not familiar with the actual procedure but I assume that if a counsel is instructed to prosecute a case, he does so through the courts and that ultimately he reports back, perhaps by way of letter when returning his brief to the Director of Public Procecutions, stating the result of the case, both in the context of whether a conviction was obtained, and also the nature of the sentence imposed.

Is it intended that prosecuting counsel will now have to report to the Director of Public Prosecutions whether prosecuting counsel regards the sentence imposed as reasonable or as unduly lenient? How is that going to work? Bearing in mind the Minister's worries about prosecuting counsel making pleas on sentences, does that not mean that it will be left to the subjective judgment of an individual prosecuting counsel, rather than the Director of Public Prosecutions, to report whether a sentence is harsh or lenient? Whereas the intention of this section is right I am not sure how it will actually work.

One must also link how this section will work with section 4 of the Act. Section 4 reads:

The registrar of a court which has imposed a sentence on conviction of a person on indictment shall—

(a) give to the Director of Public Prosecutions, on request,

—I emphasise the word "request"— a copy of any reports or other relevant documents that were considered by the court before it imposed the sentence, and

(b) if the sentence has become the subject of an application under section 2, give a copy of those documents to the Court of Criminal Appeal and the convicted person.

I am not sure what the interaction will be between sections 2 and 4. It seems to me the Director of Public Prosecutions will not get copies of reports or other relevant documents automatically. He will have to request them. What will trigger the request? The DPP will not sit in court and observe what is happening in every criminal trial that is taking place. Will the Minister explain how this will operate in practice and how, within the 28 day limit, it will happen? Will the DPP, for example, receive a copy of the transcript of the evidence in the case within 28 days and of submissions made in relation to the matter of sentence? Will he receive a transcript of the judge's decision and his explanation for the type of sentence imposed?

It seems to me that the Director of Public Prosecutions cannot, in the dark, determine whether a sentence is unduly lenient. I am concerned that more flesh should be put on the provisions of this Act as to how it will operate procedurally and how a sentence will be drawn to the attention of the Director of Public Prosecutions. Will it be the case that the only occasion on which the DPP will appeal against a sentence is when there is some form of public outcry in the media? We have been fortunate in that the media have informed this House of cases we would perceive as having resulted in unduly lenient sentences being imposed. However, I would have reservations if the possibilities of appeal against unduly lenient sentences were dependent on whether the media reported the result of a particular case and whether they would do so in terms of praise — or criticism — of sentences handed down. That would give rise to concerns in relation to mob rule rather than judicial rule in regard to the Director of Public Prosecutions making a decision.

While we are grateful to the media for reporting recent cases, Deputy Harney should have referred to occasions when the media do not always get it right because the nuances of what happens in a criminal trial are not always fully understood and are open to misinterpretation. Perhaps, because we are running out of time, the Minister will explain how sections 2 and 4 will operate in practice and what will trigger the interest of the Director of Public Prosecutions in a particular case to warrant steps being taken to appeal against an unduly lenient sentence. For example, what steps can be taken to ensure that a prosecuting counsel, with insufficient time, can tell the DPP what happens in a particular case so that the 28-day rule can be implemented?

While I accept that someone who has been convicted of an offence should not be left in a position of uncertainty for an unduly lengthy period of time, I wonder whether the administrative problems and bureaucracy associated with implementing this would require the Minister to look at the 28-day provision and to extend it by additional days to ensure that cases which should be appealed do not go by default because of the difficulty of complying with timescales.

Mr. Briscoe

This whole section need not have been inserted if it had not appeared to the public at large that sentencing leaves a lot to be desired in certain cases. I do not think there is any question of mob rule, I would be totally against anything which would smack of that or intimidating the Judiciary or the Director of Public Prosecutions. The section reads: "If it appears to the Director of Public Prosecutions that a sentence imposed by a court or conviction of a person on indictment was unduly lenient ..." It does not say how the Director of Public Prosecutions obtains this information; it could be from a member of the public writing a letter to the DPP saying that he or she was dissatisfied with the sentence. The Director of Public Prosecutions will probably need more staff when this Bill is enacted.

The media, although they have been criticised, act as a public watchdog in certain cases. Deputy Shatter is right in saying that the media can very often miss the nuances of the imposition of a sentence in a particular case. I know that, in the past, there were cases regarding which the public were not fully informed by the media as to why a certain action was taken. However, we still have free speech and the Director of Public Prosecutions gets his information from the media or from letters written by the public, who are very quick to make their voices heard when the feel an injustice has been done. I will be anxious to hear how the Minister thinks the Director of Public Prosecutions should act in regard to information he receives. I hope he will not be required, within the 28 days, to submit a full case and that it will be sufficient to say he is preparing a case to appeal against sentence. He could intimate he will give all the information when he has had more opportunity to study the papers from the courts. Will the Minister clarify whether he has to give all the reasons within 28 days or is it sufficient to notify the court of his intentions in relation to certain cases?

Mr. Shatter

Deputy Briscoe is not correct because, as a result of section 2 (4) if a member of the public writes to the Director of Public Prosecutions complaining that the outcome of a case has been an unduly lenient sentence, the member of the public who wrote is committing an offence. There is a problem in this regard as only a very limited and reserved group of people can communicate with the Director of Public Prosecutions about sentencing. Perhaps the Minister will allay my fears in regard to section 2 (4). When cases have been heard in the courts, relations of people who have been affected by crimes committed against them have written to Members of this House expressing outrage at the sentences imposed. Much of what we have discussed today has dealt with sexual offences, rape and incest, because of the background to the case last week. However, there is one area on which I hold very strong views and in which the courts are far too lenient in the sentences handed down: I refer to cases where deaths result from dangerous driving by so-called joy-riders who have stolen cars and driven irresponsibly — we have had instances of people being mown down while standing at bus stops — or where people who are driving their own cars blind drunk have killed people.

Our courts are far too lenient in those circumstances and instead of bringing prosecutions under the Road Traffic Act, charges of manslaughter should be brought and extremely severe sentences handed down. Over the years, the most frequent occasions on which I received letters from people in my constituency — and outside it — complaining about unduly lenient sentences are not in the context of sexual offences but have arisen from a number of cases in which pedestrians or cyclists have been killed by drunken drivers or people driving stolen cars. People are very annoyed that courts have imposed a sentence of three to five years; a sentence of between ten and 15 years should be handed down in cases of this kind. Relations who are distraught at the death or permanent incapacitation of a relative as a result of irresponsible driving of a car will very often complain about lenient sentences.

The worst of all worlds would be for a person who has been bereaved or who has seen a spouse or a child turned literally into a vegetable by irresponsible driving by someone to find themselves, at the end of a criminal prosecution, convicted because he or she wrote to the Director of Public Prosecutions complaining about a lenient sentence. That would be going down a very wrong and dangerous path. I am sure that is not what the Minister intends but I am concerned about the manner in which section 2 (4) may interact with the 1974 Act. We will not get many more opportunities to address the matter in this House and, therefore, I ask the Minister to reconsider that section. We can probably take the view that the Director of Public Prosecutions is an independent person but it is not a matter of great public concern if he receives a letter from someone who is a relative of a victim complaining about the lenient sentence handed down.

I would regard the Director of Public Prosecutions as sufficiently independent to read the letter and look at what is involved in the case without being constrained by the communication to take a specific course of action. I think we have to be very careful as to how we extent the provisions of that offence. Yet another example of the danger of rushing through this legislation is that while focusing on one area we fail to look at others. If, say, the parents of a young girl who was sexually assaulted were to write to the Director of Public Prosecutions complaining about the leniency of the sentence imposed subsequently on the guilty party, that should not result in the invocation against them of the provisions contained in the 1974 Act.

Mr. O'Dea

I listened carefully to what Deputy Shatter said about section 2 (4) and I agree with him. I will have the matter examined. The Deputy can understand the reason for section 6 of the 1974 Act. Section 6 of the Prosecution of Offenders Act, 1974, prohibits people from communicating with the DPP as regards his decision on whether to initiate a prosecution in the first place. We are extending this with necessary modifications to cases where the Director of Public Prosecutions is making a decision to appeal a decision on the grounds of leniency, but from what the Deputy says I can appreciate that certain undesirable situations can arise which we do not want to happen. I now give an undertaking to the Deputy to look at this matter again.

In relation to the interaction of sections 2 and 4, the DPP, if he considers appealing a lenient sentence will look for the documentation referred to. The Deputy asked what will trigger his decision. We envisage that the Director of Public Prosecutions will get his information from the prosecution team and it is then a matter for himself to make the necessary administrative arrangements to set up a system whereby it can be decided in his office as to whether an appeal against the leniency of the sentence should be initiated. On the matter of extending the 28 day period, we have spoken with the Officer of the Director of Public Prosecutions on this matter and they think they can make the necessary arrangements in that time-frame. They indicated they were happy with the 28 day period but I will undertake to ask them about it.

This Bill will deal not only with cases which attract massive publicity but with cases where there will be no publicity at all and sentences will be appealed on the grounds that they were too lenient.

This brings me to Deputy Harney's point on communications. We are talking about communications as referred to in section 6 of the 1974 Act. What I envisage is that we are talking about communications either written or oral, addressed specifically to the Director of Public Prosecutions or one of his officers. Neither newspaper editorials nor debates in the Dáil fall into the category of `communication', as I understand it. The Deputy will be aware of a number of high profile cases which attracted a great deal of publicity in recent times. One case in particular in the past ten days attracted a great deal of publicity before the DPP decided to initiate a prosecution so that would have to come under the 1974 Act. Neither the Garda nor the DPP felt they had any legal function in regard to the publications I have referred to. When the section was drafted the intention was that "communication" meant a direct communication, whether oral or written.

That covers most of the points raised. If anybody wishes to ask anything else, I will be happy to deal with it.

Miss Harney

I have read the 1974 Act but the definition section does not define what a "communication" is. I submit that an editorial in a newspaper the DPP gets every morning and reads over breakfast is a communication although not directly intended for this purposes but we are all influenced by things we read. It may be necessary to amend the 1974 Act to include a definition of what constitutes communication. If the Director of Public Prosecutions is going to make a decision whether to appeal on an informed basis he will have to have available to him a transcript of the proceedings. As I understand it such transcripts do not become available for a considerable length of time. The Director has only 28 days in which to make his decision and obviously he will need to read the transcript early in that 28 day period because he will need to discuss it with people in his office. Will the Minister indicate if any new arrangements are being made to allow a transcript of the trial be made available to the Director of Public Prosecutions so as to allow him to make an informed decision.

Finally may I reiterate what I asked earlier? Does the Minister envisage ever making it a contempt of court for the media to publicise details in relation to a case during the 28 day period when the Director is making his decision on whether to appeal the case? In my view the DPP will come under enormous moral pressure as he would have done had he had this power during the past few weeks. If we had a number of cases of the kind in question and the Director did not seek to appeal the sentence, his office would be brought into disrepute because people would feel that he was not doing what he should be doing. We need to be fair and reasonable. A great deal of pressure will be put on the DPP as a result of the enactment of this legislation. Public expectations have been raised. Indeed, last Sunday I heard the Minister reassure the public that this was going to be put right by a Bill that would come before the House this week. Most members of the public now believe that if we had another case similar to the Kilkenny incest case where it was felt the sentence given was too lenient, an automatic appeal would be brought forward by the Director of Public Prosecutions. That is not the case and may never be the case.

Mr. O'Dea

I accept that the responsibilities of the Director of Public Prosecutions will increase. It would be wrong of me to say that we could make arrangements to have transcripts of an entire case ready for the DPP within a 28 day period. I understand that would not be possible but perhaps we could arrange for a transcript of the judge's remarks on passing sentence to be available within that period. As I said already in response to Deputy Shatter, we have spoken to the DPP's office and we will be speaking to them again. They are quite happy that they will be able to administer this legislation properly. Time will tell and if there are difficulties we will meet them as they arise.

On the question of the Prosecution of Offenders Act, 1974, the term "communication" does not appear; rather the reference is to "communicate with." It states: "it shall not be lawful to communicate with" the various officers involved. That has been interpreted as a direct communication with the officer rather than something that is written in a newspaper or said on television or here in the House. If it had not been interpreted in that way there would have been a vast number of prosecutions against newspapers and RTE in the years since 1974. I think I can allay the Deputy's doubts in that regard.

Question put and agreed to.

Section 3 agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. Shatter

I am concerned that section 4 provides automatically for legal aid for the person convicted of an offence in the event of an appeal on the severity of the sentence. It appears to provide that without even having a means test requirement. Will the Minister clarify whether that is correct? If someone has sufficient means to pay for his or her own solicitors and counsel when being prosecuted and there is an appeal subsequently against the sentence on the grounds that it was unduly lenient, there is no particular reason that the State should carry the burden of the convicted person's legal expenses.

Second, I am concerned at the unequal position of the offender vis-à-vis victim. In section 5 the court is supposed to take into account the effect of an offence on the victim. We are willing to provide all the legal panoply of support for the offender but the State is not willing to provide legal help for the victim who may wish to communicate to the court the effect of the crime that has been committed against him. Will the Minister clarify why the victim is not being treated at least as well as the offender?

An Leas-Cheann Comhairle

I regret I cannot allow the Minister to reply at this stage. Before putting the question, is the Minister of State accepting any of the Opposition amendments which have not been reached?

Mr. O'Dea

I will accept amendment No. 11 in the name of Deputy Shatter and amendment No. 12, in my name, is consequential.

An Leas-Cheann Comhairle

As it is now 2.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice and not disposed of, together with amendment No. 11, are hereby made to the Bill, in respect of each of the sections undisposed of, that the section or, as appropriate, the section, as amended, is hereby agreed to; that the Title, as amended, is hereby agreed to and that the committee, accordingly, reports that it has considered the Bill and has made amendments thereto and has amended the Title to read as follows: An Act to enable the Court of Criminal Appeal to review unduly lenient sentences, to make other provision in relation to sentencing, to provide for the payment by offenders of compensation for injury or loss resulting from their offences, to amend the Criminal Procedure Act, 1967, and the Punishment of Incest Act, 1908, and to provide for connected matters."

Question put and agreed to.

Bill reported, with amendments, and received for final consideration.

Dáil Éireann debate - Thursday, 11 Mar 1993

Criminal Justice Bill, 1993: Committee Stage.

Tá

Níl

Dáil Éireann debate -
Thursday, 11 Mar 1993