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Dáil Éireann debate -
Thursday, 2 Jul 1998

Vol. 493 No. 5

Criminal Justice (Release of Prisoners) Bill, 1998: Report and Final Stages.

I move amendment No. 1:

In page 4, between lines 33 and 34, to insert the following:

"(2) Any release under this Act shall be by way of licence revocable by the Minister and in the event of such powers of revocation being exercised, the prisoner shall be returned to custody without warrant or court proceedings.

(3) A prisoner's licence under this section shall be subject to the following conditions.

(a) that he or she does not support a terrorist organisation,

(b) that he or she does not become involved in the commission, preparation or instigation of acts of terrorism, and

(c) that he or she does not endanger the public.".

Conscious that we did not have an opportunity to debate this matter in detail on Committee Stage, I hope the Minister can clarify certain matters. What are the consequences of the release, the type of release and the power, if any, the Minister may have to introduce sanctions or conditions that affect that release? The Minister stated earlier the release procedure will be that practised under the Offences Against the State Act, 1939, and the Criminal Justice Act, 1960, but was not in a position to say which would be employed in any given case. It is important that a scheme is put in place that will allow for clear and unambiguous conditions to be attached.

I would like to see a licence operation for release. The Minister stated on Second Stage this was unknown in Irish law and because of that he would not accommodate it now. Because it is unknown to Irish law does not mean it is inappropriate to Irish law or that it has nothing to offer Irish law. Such a system would ensure the Minister could revoke the licence, thereby reinaugurating the sentence at some future time. That future time would obviously be in a situation where terrorist activities would be undertaken by either the individual or the organisation to which he is affiliated.

The amendment is reasonable, meets a public concern and acts as an important safeguard. I do not wish to deal with it on a line by line basis as it is self-explanatory. If the Minister is not in a position to accept it will he apply the conditions he can apply in the matter of an early release or temporary release or will it be a pardon or an amnesty? I have asked this question on a number of occasions today and have not got a straight answer as to the type of release period and whether conditions will be attached. Will it be contingent on a certain amount of good behaviour? Will there be provision for supervision by probation and welfare services? Will there be a requirement that certain visits be made to a Garda station at any time? What conditions, if any, does the Minister envisage building into the legislation or the methodology he will apply? Does he envisage co-operation with, for example, the decommissioning body and has he anything to say on a form of relationship with that body? To allow an unconditional release may give rise to difficulties in the future. These are the safeguards which we, as legislators, have a duty not only to consider but to ensure.

I commend the amendment to the House. If the Minister is not in a position to accept it — he indicated earlier he was not — I hope he can give certain assurances along the lines suggested as to the conditions he will apply as the releases take place.

The amendment provides that any releases under the Bill shall be by way of licence revocable by the Minister. This is unnecessarily trying to follow the law in another jurisdiction. We do not, as a matter of law, have release by way of licence. That concept cannot simply be transplanted into our law in the way the amendment seeks without further legislative infrastructure to support it. In any event we have a system of release parallel to the United Kingdom licence system, which is release subject to conditions. Therefore, there is no need to try to import this concept. While the concept of release on licence was a United Kingdom concept we have a release in this jurisdiction subject to conditions. To that extent we have a parallel system of release. It is important that this is said in case anybody should think our system is radically different. It is different but parallel and conditions can be attached in certain circumstances.

The conditions which should be attached to particular releases fall to be considered on a case by case basis. In exercising existing release powers in the context of the Agreement, the standard condition to the effect that a person keeps the peace and be of good behaviour will apply. It will be generally accepted that that condition encompasses what we wish to achieve and that there would be no advantage — there could be disadvantages — in seeking to define it more specifically. A further basic difficulty with the amendment is that it refers to releases made under this Act when in fact releases would fall to be made under release powers in other legislation. For the reasons outlined I do not believe the amendment is appropriate or necessary.

With regard to conditions generally, we already discussed the Offences Against the State Act, 1939, and the Criminal Justice Act, 1960. It would not be productive if I were to rake over those coals and I doubt Deputy Flanagan wishes me to do so. As to making reference to the decommissioning body, I gather the British legislation as first presented states that the body should be satisfied that an individual has co-operated with it, but that is not provided in this legislation.

I outlined to the House that releases under our legislation would be pursuant to the Criminal Justice Act, 1960, under which the Minister has the power, and the Offences Against the State Act, 1939, under which the power rests with the Government. It is not possible to give an accurate answer to the interesting questions raised by Deputy Flanagan because every case must be considered individually. I indicated that the vast majority of releases would be pursuant to the Criminal Justice Act, 1960, because we are talking about repatriated prisoners — the 1939 Act does not refer to such prisoners and does not encompass cases of capital murder, which leaves the minority of prisoners to be dealt with under either Act. I assure the Deputy that each case will be carefully considered and dealt with by the Government or the Minister as the case may be, according to which Act applies in a given case.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 3 are related and may be discussed together.

I move amendment No. 2:

In page 4, between lines 33 and 34, to insert the following:

"5. — The Minister shall provide a statement containing information for victims of interested parties, provided that—

(a) he or she receives a written request for such statement, and

(b) the provision of such statement does not create a danger to the safety of any person.".

I expect everyone in the House would agree with the Minister's remarks on Second Stage about the importance of victims. The Government must take a difficult decision and it will have a great impact on those victims. This amendment will ensure they or their relatives will be aware of the circumstances of prisoner release. It concerns a small number of people and, if accepted, will cause few if any problems. Should a victim or a relative of a victim request from the Minister in writing the particulars of a release, such information should be furnished. As Deputy De Rossa said, the manner of a release may impact on victims and we should ensure no greater hurt, trauma or anxiety is perpetrated or revisited on them.

Doubtless many people will not make such a written request and if that is the case so be it. The proposed section 5(b) contains a safeguard for the prisoner, which is important. This is a reasonable, balanced provision and if the Minister will not accept it, perhaps he will indicate that he will consider it favourably in the context of the machinery he will put in place to consider each release.

There is a strong case for accepting these amendments. They would not create an administrative burden for the Minister's Department. Not many prisoners will fall to be released under this scheme and some will be released through the normal remission period on their sentences in any event over the next two years. It would demonstrate yet again a sensitivity to the feelings of the victims of those in prison, some of whom have been convicted for serious crimes against individuals, including murder of members of the Garda Síochána. I can think of no worse scenario than being a victim of crime and meeting the perpetrator on the street, not having known that he had been released.

There are people who will not want to know this but would rather put it behind them and forget about the circumstances. That is why my amendment No. 3 provides that a written request must be received — in other words, not everyone related to or associated with a victim of a crime will automatically receive information about a prisoner's release, only if a written request is made by a victim or a victim's relative will the information be provided.

The information involved would include whether the advice of the commission has been sought about a qualifying prisoner, because under this Act it is not necessary for the Minister to seek the commission's advice in all cases; it is optional but I am sure in most cases he will seek it. Nonetheless, it is important that this information be available. If the Minister has received such advice, a person inquiring should also be told whether the Minister intends to exercise a power of release — that is, if he intends to release a prisoner. The proposed date of release and any terms and conditions attached to the release should also be made known, and details should also be given in the case of a person who has already been released.

Of all those conditions or information which might be sought, the most important for the victims and their relatives would be the proposed date of release and the terms and conditions attaching thereto. Earlier I asked the Minister whether he could apply a condition as to the area where a released prisoner might live — whether he had the power or intended to use the power to preclude a person from living near his victim or a relative of the victim. Different criteria would apply in different parts of the country — for instance, it would be problematic if a released prisoner lived in the same small town as his victim, whereas it might or might not be as much of a problem if they lived in different parts of Dublin.

If this amendment is accepted by the Minister, those who are concerned about this matter will have an opportunity to convey that concern to him.

We must further demonstrate our understanding of the trauma through which many will go as a result of this legislation and the Agreement. I have argued since the acceptance of the Agreement that we cannot pick measures from it a la carte and say “we like this and do not like that” or “we will implement this but not implement that”. It must be implemented in totality. In doing so, this House must have regard to the victims of those we will release in the next two years.

The Schedule quotes a section of the Agreement —". any qualifying prisoners who remained in custody two years after the commencement of the scheme would be released at that point". What is the date for the commencement of the scheme? Is it when this legislation is signed by the President or the date of the Agreement?

I sympathise with the thinking behind these amendments. I accept that, to the greatest extent possible, victims should be informed in relation to the release of prisoners. However, for reasons I will explain, this matter should be addressed by appropriate administrative arrangements rather than by enshrining amendments of the kind proposed in the Bill.

There is an inherent difficulty in defining a victim of an offence. This is clear in many cases, for example where a person has sustained a direct physical injury as a result of the commission of an offence. Where a person is a victim in a wider or more remote sense, difficulties arise in assessing whether the amendment would confer on those people a right to certain information. The amendments make no attempt to define the term "victim". The terms "a member of his or her family" or "interested party to" are unlikely to be sufficiently legally precise.

There is also the practical consideration that the majority of qualifying prisoners in this jurisdiction have been transferred from the United Kingdom and even if a satisfactory definition of victim was included in the amendment, there could be significant difficulties at this remove in establishing the bona fides of an applicant.

There are also problems with some of the detail the Minister would be obliged to supply under amendment No. 3. This would require the Minister to indicate whether he or she intends to exercise any power of release in regard to the qualifying prisoner. The request could be made at a time when no decision had been made in the particular case so the Minister would not have the information which, under the amendment, he or she would be obliged to supply.

I do not accept that in all cases it would be appropriate for a victim to be aware of all the conditions of a prisoner's release. It could prove the case that a condition of release relates to the personal circumstances of an offender which would be relevant to the interests of a victim. The amendment would require this to be revealed. I am not suggesting that this would be the norm in releases, but we must plan for every eventuality.

Amendment No. 2 is very vague and refers to the Minister providing a statement containing information for victims or interested parties but gives no indication of what is to be contained in the statement. Because of the type of issues I have outlined, I have grave doubts about the wisdom of trying to deal with this matter on a statutory basis. I can give a commitment we will put in place whatever administrative arrangements are appropriate to address the legitimate interests of victims in this area.

The former Tánaiste, Mr. Wilson, may have specific recommendations to make in his examination of the needs of victims. I am pleased that Members welcomed his appointment. The situation is more complicated in the case of repatriated offenders where victims do not live in this jurisdiction. I will be in contact with the Home Secretary in relation to the release of prisoners who have been transferred here from the United Kingdom. In the light of our discussions I will raise with him the relevant issues vis-a -vis victims in that jurisdiction.

We all accept the need to address the needs and rights of victims. For the reasons I have given, I do not believe this will be best done by legislative measures. However, I assure Deputies it is the intention to address these matters as effectively and appropriately as possible on an administrative basis.

Will the Minister consult spokespersons on the administrative arrangements?

As it is now 8.15 p.m., I am required to put the following question in accordance with an Order of the Dáil of this day:

"That Fourth Stage is hereby completed and the Bill is hereby passed."

Is that agreed? Agreed.

I thank Members for their contributions to this extremely important Bill. I thank officials from my Department for the work they put into the preparation of this legislation. This was a responsible, incisive and informed debate. This is a crucial Bill at a critical juncture, which signals a turning point in our history. It is appropriate the Bill should be passed following the first sitting of the Northern Assembly. This is further evidence that Ireland has turned its face to the sun.