Criminal Justice Bill 2007: Report Stage.

Bill recommitted in respect of amendments Nos. 43 to 170, inclusive.

I seek clarification on what we are doing. Am I to understand that we will have a Committee Stage debate on all sections including the sections from section 12 onwards and that we will deal with all amendments including new Committee Stage amendments tabled since last Thursday? I understand we will be working from the Report Stage listing, even though we will be in committee and that normal Committee Stage rules will apply and that normal Report Stage will follow tomorrow. Is that all correct?

That is correct.

Are we working on the Bill as amended?

To avoid confusion, we are technically on Report Stage and are recommitting a number of matters.

All of them.

Yes. We are on Report Stage and are reverting to Committee Stage for these amendments.

Do I take it that we are operating from the new list of Report Stage amendments?

However, I am lost.

We are going to have a day of confusion.

SECTION 12.

I move amendmentNo. 43:

"an adequate time in advance of the commencement of the proceedings concerned to allow for consideration of its content.".".

This is a simple amendment to provide that there be adequate time to allow for consideration of the content, as indicated in the section. It seeks to ensure that proper consideration is given to decisions relating to the operation of this Bill, which was not given in the House in the first instance.

The Deputy's amendment refers to the person in respect of whom bail is being varied or an application for bail is being made being given adequate time before the proceedings in the court are dealt with. In the District Court if somebody needs extra time, he or she will get it. If the prosecution tried to proceed prematurely there would be an adjournment. It is not necessary to tell the courts they should be fair to people and give them adequate time to prepare to meet the case against them.

Are we dealing with amendment No. 43 to section 13, which deals with electronic monitoring?

Is amendment No. 44 being discussed with it?

According to the list, amendments Nos. 43 and 44 are being discussed together.

Acting Chairman

We are on section 12, amendment No. 43.

Are we dealing with amendment No. 44 as well?

Acting Chairman

No.

The list of groupings is wrong.

Can we have the list of groupings?

Acting Chairman

Amendments Nos. 44 and 45 will be discussed together. I will arrange for the correct list to be circulated.

With regard to amendment No. 43, the court will always give a person brought before it adequate time to meet the case against him or her. It is not necessary to provide for that in a statute. If we started to do that, it would have to be included with regard to every offence and procedure in a court.

Amendment, by leave, withdrawn.

Acting Chairman

We will proceed to amendment No. 44. Amendment No. 45 is an alternative so amendments Nos. 44 and 45 may be discussed together.

I move amendmentNo. 44:

In page 13, to delete lines 4 to 12.

I argued previously against the concept of outsourcing any part of the justice system. This provision deals with arrangements for electronic monitoring and allows the Minister to make contractual arrangements with any persons he or she considers fit to conduct the monitoring. This would permit the outsourcing of electronic tagging. My preference is that this should be an additional task which would be allocated to the probation and welfare service. If required, that service should be enabled to employ additional staff to carry out this task. The people monitoring an electronic tagging scheme should be public servants.

On Committee Stage we discussed the question of cost effectiveness. Deputy Howlin was particularly interested in this. The Department has been examining this issue and has looked at evidence from, among other places, the United Kingdom, where a report by its Comptroller and Auditor General showed that the numbers on curfew had risen from 9,000 in 1999 to over 50,000 in 2004-05. It showed that the Home Office spent £102 million sterling on electronic monitoring in the latter year.

Officials in the Department met some providers of the service and received an outline of technological capability in the range and type of electronic monitoring service delivery available. It will not come into force until an arrangement is made in accordance with sections 13 and 16 of the Bill and, as is normal practice, detailed specifications would have to be worked out and public procurement and tendering processes adhered to before electronic monitoring would be introduced.

I am obliged to the Minister for that detailed information. The £102 million sterling spent in the UK in 2005 related to 50,000 people on curfew. I take it that of the two types of electronic monitoring described, this is fixed point monitoring.

Curfew monitoring.

Was there expenditure on remote location monitoring? Is that in practice in the United Kingdom or in any other jurisdiction on which the Minister has information?

I have no information on that point.

Courts in this jurisdiction are reluctant to deny bail without a compelling reason due to the principle that people are innocent until proven guilty. People on bail are obviously awaiting a determination of the court. We are arguing that where there is a real likelihood of an offence being committed, the individual should be kept in custody. The notion that 50,000 people would be subject to curfew indicates that where there is a lesser option such as electronic monitoring, it would become more readily used. How would that fit in with our Constitution, which guarantees people liberty? Monitoring is a curtailment of liberty.

I do not know what percentage the 50,000 cases would be of the overall number of bail application cases in the United Kingdom but it appears to be a significant proportion. I am worried that it could be perceived as not a major step to delimit somebody's freedom to the extent of requiring them to be subject to curfew or monitored in this way. Is it an option that might, if it was overused, fall foul of our Constitution's right to liberty and free movement and, second, the right to be determined to be innocent until proven guilty?

Is there further information on cost? The Minister told us last week that the more people who are involved, the cheaper it will be. Will there be an economic reason for having the system used more often rather than less often?

I am an avowed enthusiast for electronic tagging.

A tagger.

I have always held the view that somebody is better off being electronically tagged and out of prison than in prison. I say this based on every perspective, particularly that of civil liberties. It is also of huge advantage as far as the taxpayer is concerned because the average cost of keeping someone in prison is approximately €2,000 per week. The figures I receive from the UK indicate that it costs £800 per month, which is about €1,200, to tag someone. This translates to about €300 per week. If those figures are correct or still stand, it would be——

It depends on the number of people being tagged.

I accept that if one did not have a——

A scale.

I accept that if one did not have a scale, one might not be able to run at a rate of €300 per week. Still, it indicates that the figures are much more cost-effective from the taxpayer's perspective.

I also accept the point consistently made by Deputy Howlin that, at this stage, the only assured system that works properly and cost-effectively is the home curfew system, which is related to a telephone connection, as opposed to GPS monitoring where there are continuing difficulties and greater expense. I envisage using the home curfew system initially.

I have two questions for the Minister, the first of which is probably not hugely relevant now, although it was relevant when we discussed this issue a year ago. Is the Minister committed to this? Without a political commitment from the Minister, it will not be operational.

The Minister will not be operational.

It will hardly be relevant as far as this Minister is concerned at this stage. I was impressed by the comments of the head of the Garda inspectorate yesterday when she spoke about issues which were close to my heart. She then seemed to suggest that the bureaucratic obstacles to getting anything put in place were substantial hills to climb. Leaving aside the question of whether the Minister is very committed at this stage and taking into account the fact that, since the passage of the last Criminal Justice Act, there is a provision in law for electronic tagging as a post-release condition, how long would it take to get the system operational if one was fully committed? How long would it take from the point of view of tendering and dealing with contractors? Could it be operational within six or nine months? Based on his experience in office, if it was pushed, how long would it take to have such a system operational so that judges can make orders pursuant to the law we are putting through the Oireachtas?

It is almost impossible to be absolutely scientific about how long these processes take. From dealing with a number of projects which required procurement, my view is that it would be optimistic, from the time of a decision to definitely go ahead with it and to put out a tender specification, to say that one would have a result and implementation within a year of that date.

That is very disappointing. On the other hand, if steps had been taken to put it into operation when we passed the last Act a year ago, it would be virtually operational now.

A year has not passed since we passed the last Act so I do not, therefore, agree with that proposition. Since the Deputies are spending some of their time here looking at electoral tea leaves, Deputy Jim O'Keeffe might be better employed asking Deputy Howlin whether he wants this at all if he anticipates being in a position to influence the decision himself.

The Minister has done nothing about——

Acting Chairman

Is the amendment being pressed?

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

On a procedural point, I wish to point out to the House that anything that is voted on today cannot be raised on Report Stage because of our recommittal procedure, so even voice votes mean that we cannot raise these matters again if we push them. Am I right in believing this?

I presumed it was in committee.

I am afraid this is not the case. It is a committee of the entire House.

Acting Chairman

I will be guided but——

I have been advised along those lines by officials of the House.

Just for the information of the House——

Acting Chairman

I will have this matter clarified.

It does not make much difference anyway.

That is true.

Acting Chairman

Does Deputy Ó Snodaigh wish to reflect?

No. I have already reflected on it sufficiently.

Acting Chairman

Amendment No. 45 cannot be moved as it has already been discussed with amendment No. 44.

I would like the opportunity to raise it tomorrow.

Section 12 agreed to.
Amendment No. 45 not moved.
Question, "That section 13 stand part of the Bill," put and declared carried.
NEW SECTIONS.

I move amendment No. 46:

In page 13, between lines 12 and 13, to insert the following:

14.—The Criminal Justice Act 2006 is amended by the insertion of the following Part, after section 197, as Part 16:

"PART 16

THE EVIDENTIAL BURDEN

198.—(1) Where an enactment or rule of law creates an offence but provides for a qualification, exception, exemption, proviso or excuse (all of which are subsequently referred to in this Part as 'provisos'), whether accompanying the description of the offence or otherwise—

(a) the proviso need not be specified or negatived in a complaint charging that offence,

(b) at the hearing of a complaint charging that offence, no proof in relation to the proviso is required on the part of the prosecution,

(c) if the defendant at the hearing of a complaint charging that offence wishes to rely on the proviso—

(i) the burden of proving such proviso rests on the defendant,

(ii) the court shall, unless the interests of justice otherwise require, allow the prosecution to re-open the case in order to adduce evidence in rebuttal of evidence adduced by the defendant under subparagraph (i).

(2) In determining whether subsection (1) applies to an enactment or rule of law creating an offence, regard shall be had to—

(a) whether the provision concerned—

(i) reduces the scope or extent of the factual outline that delineates the ambit of the offence,

(ii) excludes specified persons or cases from the class of those who would otherwise fall within that factual outline, or

(iii) otherwise narrows the effect of the enactment,

(b) whether, notwithstanding that a particular fact is provided for as an ingredient of an offence rather than the non-existence of that fact being provided for as giving rise to a proviso, the fact in question is of such a nature that its non-existence in any particular case would be exceptional and its existence in such cases generally can therefore reasonably be presumed,

(c) whether there is a reasonable possibility that a state of affairs adverted to by or on behalf of the defendant may exist or may have existed,

(d) the comparative ease or difficulty for the prosecution and the defendant in discharging the burden of proving the fact in question,

(e) the public interest in ensuring that the prosecution should not be required to prove facts peculiarly within the knowledge of the defendant or to disprove facts that are improbable,

(f) the presumption of innocence and the constitutional rights of accused persons.

199.—In any proceedings against a person for an offence—

(a) the court, in determining whether there is a case to answer, shall not have regard to any issue raised by or on behalf of the defendant, in a submission that there is no case to answer, in relation to which it is for the defendant to submit, or point to sufficient evidence already received, to persuade the court there is a reasonable doubt as to whether such an issue may reasonably exist,

(b) (i) the court (or, subject to the judge’s directions, the jury), in determining whether that person is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may, in relation to the issue sought to be raised by or on behalf of the defendant, draw such inferences from the failure of the defendant to submit, or point to sufficient evidence already received, as appear proper,

(ii) such failure may, on the basis of those inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the failure is material,

(iii) a person shall not be convicted of an offence solely on an inference drawn from such a failure.".".

This is a new section. It occurs earlier than on Report Stage. I am very conscious that this falls foul of the Minister's instruction to us not to think up our own ideas and to limit ourselves to his view on what is proper to the Bill. Notwithstanding that, I will deal with it very briefly because I do not wish to take up too much time on it. It is an area in which the Minister will have much more experience than I.

I raised this issue in the context of the last Criminal Justice Bill last year. The amendment seeks in a long-winded way to provide that where the criminal law prohibits something subject to an exemption, as it states in the first part of the section, "where an enactment or rule of law creates an offence but provides for a qualification, exception, exemption, proviso or excuse", it is a matter for the defendant to prove that the exception applies to him or her rather than for the prosecution to prove that it does not apply.

A very simple example of it, although I am not using it in respect of this debate because we are talking about criminal legislation here, is that if the law states that a person must have a television licence and he or she asserts that he or she has one, it should not be up to the prosecuting authority to prove that he or she does not have the licence. The person should be able to prove that he or she has the licence.

It was suggested to me by practising lawyers that it would strengthen the hand in respect of the prosecution of offences by shifting the evidential burden in matters where an excuse provision exists. When I say "excuse", I mean a qualification, exemption and so on as listed in subsection (1) of my amendment. At the hearing of a complaint charging that offence, if the defendant wishes to rely on that proviso, the burden of proof that such a proviso exists rests on him or her.

This is an interesting proposal which would effectively codify as a canon of interpretation the law which is common law to some extent and judge-based law in respect of when exceptions must be proved or disproved. Subsection (2) proposes to set out the exact criteria which a court should have regard to in deciding to apply rules of construction. It also proposes to deal with submissions of no case to answer.

I do not know where the original text of this proposal comes from; I do not know whether it is home-grown or whether it comes from some foreign criminal code. Regardless of where it comes from, I would need very extensive debate to see how it would interact with our existing law. One would need to look at all existing case law to decide whether it is a good idea to put it into law. We would also have to decide whether it would change the law significantly. The content of subsection (1) is all very well, but subsection (2) tells the court how it is to apply subsection (1). I am not clear in my own mind about this. For example, one of the criteria is in subsection (2)(d), which states: “the comparative ease or difficulty for the prosecution and the defendant in discharging the burden of proving the fact in question”. I do not know whether that adds anything to the existing law or whether it makes the law more or less clear. I believe that this interesting proposal needs further study so I do not propose to accept the amendment.

I compliment Deputy Howlin on putting forward the proposal. I utterly reject the earlier remarks of the Minister, which seemed to suggest that it is inappropriate for members of the Opposition——

I did not suggest that. Since we have limited time, I appealed to them not to bring in material that we have not had an opportunity to consider and which the public has never considered.

That supports my point about the suggestion by the Minister that it was inappropriate for the Opposition to bring forward issues——

I did not say it was inappropriate, I said it was perfectly permissible under the rules of the House, but we have limited time——

That is not our fault.

——and the Deputy said that there are many important things in the Bill which he wanted to discuss. I could go on for two hours on this if he wants. The problem is that the public has never had an opportunity to consider this proposition.

The public and this House have had very little opportunity to discuss many of the propositions put forward by the Minister. If we are to talk about improvements to the criminal justice system, let us talk about them. However, suggesting that any such discussion should be based solely on proposals by the Minister is entirely wrong and undemocratic. While I have considerable reservations about the proposal put forward by Deputy Howlin, I compliment him on putting it forward. In discussing improvements to the criminal justice system, it is only by having rational, healthy debate on ideas that we will end up with a better system. Such debate should not be confined to ideas emanating from the ministerial stable.

At first sight, Deputy Howlin's amendment looks attractive. However, I thought the example he quoted about the television licence was a little unfortunate. I am sure there are many people with television licences who have not got a clue where the actual piece of paper is and who would not be in a position to produce it. I might have some difficulty.

It could also refer to a driving licence.

I carefully keep my driving licence in my wallet on the basis that I need to produce it if I am stopped on the road as there is a law that tells me I must do that, but there is no law that states that one must keep one's television licence in a safe and secure place so that it is not the best example. There should be some evidence from an inspector to show that he checked the list and the payment does not appear to be recorded on the list. Some prima facie evidence should be produced on behalf of the prosecution.

Having said that, it seems in certain circumstances that the burden of proof should be more on the accused than currently is the case. If we had a proper debate on Committee Stage, we could have got evidence from people in this area who could give us a better understanding on where we are at the moment and how we might rebalance the law somewhat to put the onus on the accused, but ensuring that we do not do so unfairly. I am glad this amendment was raised, but I am not utterly convinced that we should adopt it in its current format.

I would like to have a longer debate about this, but not now. I will withdraw the amendment so that we can get on to other issues.

Acting Chairman

Under Standing Order 129, amendments may be moved on Report Stage, but no amendments previously rejected in committee of the whole Dáil shall be in order.

Amendment, by leave, withdrawn.

I move amendment No. 47:

In page 15, between lines 12 and 13, to insert the following:

14.—The Criminal Justice Act 2006 is amended by the insertion of the following Part, after section 197, as Part 16:

"PART 16

SUBMISSIONS ON SENTENCE ON BEHALF OF DEFENDANT

198.—(1) In addressing a court on the question of sentence, a solicitor or counsel on a defendant's behalf may address the court, on his or her client's instructions—

(a) on the evidence already received by the court, and

(b) as to the defendant’s current state of mind in relation to the offence of which he or she was convicted.

(2) A court shall not, unless it considers the interests of justice require it to do so, receive or place reliance on other statements made by a legal representative in relation to which evidence from a witness, rather than submissions from a legal representative, ought more properly be received.".".

This is an amendment to ensure that there is no abuse of the plea of mitigation. I understand that this is the practice in the courts, but it would be useful to have it incorporated into law. Its intention is to ensure that there is no abuse of the right to make a plea in mitigation and to ensure that if a defendant wants to rely on anything in his or her plea of mitigation, that fact must be proved in evidence and not merely asserted, to provide for that to be done legally and for that evidence to be tested.

This section more or less describes what actually happens at the moment.

Therefore, it is not particularly necessary. When someone is convicted in the District Court, it is usual for the judge, when telling the solicitor that his client is being convicted, to ask if he is employed, whether he has a family and whether he has any previous convictions. He accepts the solicitor's word on this and the Garda is there to contradict the solicitor if he is not correct on these issues. That is better than asking the solicitor to bring his client forward so that his marital status can be investigated, evidence provided of his marriage and so on.

This amendment will not change things. If a judge had no reason to disbelieve a barrister or a solicitor acting for someone whom he is sentencing, he will ask questions about the circumstances of his client and he will act on that, unless he has doubts or unless the prosecution demands evidence of that. Letters are often handed in with background information on the accused and nobody sees the contents of them — I think this practice has been condemned by the courts. For example, a letter is sent in by a parish priest, a bishop, an employer or a TD. It is a character reference handed to the court and sometimes it sets out propositions that might not have been known. The person might have had a difficult childhood and so on. I think the Court of Criminal Appeal has disapproved of the practice of accepting information in that form, but I do not think there is anything wrong with the judge asking the defence to provide information about the client before he is sentenced, as long as the judge is happy to accept the word of the defence and the prosecution does not object.

It is useful to discuss this proposition from Deputy Howlin. I have some concerns about accepting it because——

This coalition is falling apart.

I am not sure we will fall apart on this issue, or indeed on any issue. We will certainly not fall apart on this. It is an opportunity for us to outline our stance on the position of an accused before the court. My concern above all is that there must be a fair trial and a fair opportunity given to the accused. This proposed section is formulated in such a way that it could, by inference, exclude certain matters that should properly be put before the court by the defendant. If we specifically provide that counsel on behalf of the defendant may address the court on the evidence and on the defendant's state of mind, it could be said by inference that the court could not be addressed in regard to any matter other than these two.

As the Minister pointed out, there are situations where the judge properly looks for information on the position of the accused, such as marital status, employment or employment prospects and so on, before deciding a penalty. It is more likely such considerations will arise in the lower courts rather than in the criminal courts. I have always found the practice that has developed sensible and reasonable from the point of view of giving the judge a better fix as to what is an appropriate penalty.

It is worthwhile looking at the issues raised by Deputy Howlin. It is an issue we should consider carefully and closely in the next several years. Deputy Howlin will have my fullest co-operation in so doing. For now, however, I hesitate to rush into accepting it.

I agree with Deputy Jim O'Keeffe. The Deputies can have five more years to consider the issue.

The Minister is tired.

Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15.

Acting Chairman

Amendments Nos. 48 to 61, inclusive, are related and may be discussed together.

I move amendment No. 48:

In page 14, line 28, to delete "(4)" and substitute "(5)".

These are technical drafting amendments to renumber the sections. As printed, section 15 contains two subsections (4).

I will accept these amendments on the basis of the Minister's reassurance that they are purely technical.

Amendment agreed to.

I move amendment No. 49:

In page 14, line 34, to delete "(5)" and substitute "(6)".

Amendment agreed to.

I move amendment No. 50:

In page 14, line 35, to delete "(4)" and substitute "(5)".

Amendment agreed to.

I move amendment No. 51:

In page 14, line 38, to delete "(6)" and substitute "(7)".

Amendment agreed to.

I move amendment No. 52:

In page 14, line 38, to delete "(5)" and substitute "(6)".

Amendment agreed to.

I move amendment No. 53:

In page 14, line 40, to delete "(7)" and substitute "(8)".

Amendment agreed to.

I move amendment No. 54:

In page 14, line 42, to delete "(8)" and substitute "(9)".

Amendment agreed to.

I move amendment No. 55:

In page 14, line 42, to delete "(4)" and substitute "(5)".

Amendment agreed to.

I move amendment No. 56:

In page 14, line 47, to delete "(9)" and substitute "(10)".

Amendment agreed to.

I move amendment No. 57:

In page 15, line 1, to delete "(10)" and substitute "(11)".

Amendment agreed to.

I move amendment No. 58:

In page 15, line 4, to delete "(11)" and substitute "(12)".

Amendment agreed to.

I move amendment No. 59:

In page 15, line 5, to delete "(10)" and substitute "(11)".

Amendment agreed to.

I move amendment No. 60:

In page 15, line 6, to delete "(12)" and substitute "(13)".

Amendment agreed to.

I move amendment No. 61:

In page 15, line 7, to delete "(10)" and substitute "(11)".

Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.

I move amendmentNo. 62:

In page 15, to delete lines 23 to 29 and substitute the following:

"(3) Regulations under this section shall require the prior approval of both Houses of the Oireachtas following debate.".".

This amendment is straightforward. The Minister has said in the past that there is a significant number of regulations and that it would put an onerous burden on Members to deal with all of them. When it comes to such major changes in our justice system, however, we have a duty to ensure the regulations come before the Houses of Oireachtas.

As an Opposition Member, I often complain about the regular procedure whereby motions are referred to committee without debate. However, the work being done by the Oireachtas Joint Committee on European Affairs through its scrutiny sub-committee is an example of how to deal with a broad range of legislative provisions and directives. Where there is no great opposition to a particular provision, as is often the case with many of these practical measures, it would be beneficial to society to provide an opportunity for Members to make an input. This would help to ensure that mistakes do not happen and that regulations are made better through this additional scrutiny. It is akin to a watchful eye cast upon them every now and then.

On a point of information, one of the lists in my possession suggests we are to deal with amendments Nos. 62 to 68, inclusive, together.

Acting Chairman

Amendments Nos. 65 to 68, inclusive, will be discussed together.

I am working on the basis that the Acting Chairman will announce the groupings before we begin discussing the relevant amendments. I am ignoring the lists.

Are we working from the grouping list document?

The Chair will announce any groupings.

Acting Chairman

Yes.

So there are no other amendments grouped with amendment No. 62.

Acting Chairman

No.

It is not a good idea to say that every regulation made out of the Bail Act 1997 should not have effect unless and until this and the other House have considered it. It is better to operate on the basis that where anything is done that requires scrutiny, Members can raise it in the ordinary way.

Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."

What is the import of section 17? It lists an entire series of offences but I am not sure of its import.

The Schedule to the 1997 Act is being expanded to cover several weapons related offences. Paragraph (a) amends paragraph 14 of the Schedule to provide for a list of further offences. The effect of the provision is that a court can refuse bail to a person charged with one of the offences if it is reasonably satisfied that such a refusal is necessary to prevent the commission of a further offence. It brings these offences into the category of post-bail referendum refusals.

I am satisfied with the Minister's response.

Question put and agreed to.
SECTION 18.

I move amendment No. 63:

In page 16, line 33, after "by" to insert "or on behalf of".

This amendment proposes to amend subsection (1A) of the 1967 Act, as inserted by section 18(a), to read:

"The Court may admit a person to bail without imposing a condition in the recognisance as to payment of moneys into court by or on behalf of the person if it considers it appropriate to do so, having regard to the circumstances of the case, including the means of the person and the nature of the offence in relation to which the person is in custody.",

I am not certain whether this amendment is necessary but I am advised that it improves the subsection.

I will consider this issue further. My officials are urging me not to accept the amendment.

I understand an issue may arise where an individual's surety is also impecunious.

Sureties are dealt with separately.

The Minister has undertaken to consider this issue. I will withdraw the amendment pending Report Stage.

Amendment, by leave, withdrawn.
Section 18 agreed to.
Sections 19 to 23, inclusive, agreed to.
SECTION 24
Amendment No. 64 not moved.

Acting Chairman

Amendments Nos. 65 to 68, inclusive, are related and may be discussed together.

I move amendment No. 65:

In page 18, between lines 20 and 21, to insert the following:

24.—In this Part—

"Freedom of Information Acts" means the Freedom of Information Acts 1997 to 2003;

"law terms" refers to the four periods (to wit Michaelmas, Hilary, Easter and Trinity) of prescribed sittings for the Superior Courts, as defined in Order 118, rule 1 of the rules of the Superior Courts;

"the Register" means the Register of Sentences established by section 4;

"the Service" means the body established by the Courts Service Act 1998;

"time already served" means the period of time, prior to conviction, during which the convicted person was detained in custody without bail.".

We have been talking about sentencing and I have long had the view that one of the greatest concerns of the public has been inconsistency in sentencing. If I get any greater series of complaints above the norm, it is when cases appear to be inconsistent so far as the public is concerned. It is not unreasonable for the public to expect a standard of consistency in regard to sentencing. Is there inconsistency? Clearly there is. We do not even have a database to establish the level and range of sentences that have been passed. It is an inevitable consequence of what essentially amounts to an ad hoc situation that there is inconsistency, and that is wrong. Everybody should know that if they commit a particular offence, a certain level of sentence will probably follow. If a person is before the court the public should know that if that accused person is convicted he or she is likely to get a sentence within a certain range, and that sentence will be imposed unless there are particular circumstances which, in my view, should be explained in open court.

The approach I adopt to sentencing is that for serious crime there must be tougher sentencing but it must be consistent. An absolute basic approach to consistent sentencing is that there must be a register of sentences. That is the central issue in this series of amendments and is the basis for consistent sentencing.

The right approach in regard to sentencing is that we should have a register. At present a judge, particularly one who deals with many criminal cases, has, of his or her own knowledge, a fair idea of the level of sentences that have been passed in that area. Judges who have been newly appointed or who do not have a tradition in criminal cases may not be aware of the level of sentences and there is no ready access to a register of sentences available to them. It is possible they will be advised by the counsel for the accused, but that would be a plea in mitigation. There is no normal circumstance where, unless requested by the judge, the prosecuting counsel gives a view on sentencing, and that is ridiculous.

On the issue of sentencing, I would like to introduce a register of sentences which would be readily available to judges but also to everybody else, including those who might be contemplating committing a crime so that they would know what is in store for them if caught. In that way, when a person is being sentenced in court there would be sentencing guidelines which would establish the range of sentences that could be expected for any particular offence. That is what happens in other common law countries. Why do we not have that system here? We should start with the register of sentences and establish the range of sentences and the guidelines. It is up to the Oireachtas to do that.

As of now we merely point out a maximum sentence but that is not a great guideline to the court. We should establish sentencing guidelines, tariffs as they are known in some other common law jurisdictions, but at the end of the day we have to accept the judge has the discretion to make his or her decision on sentences. We should also require, and the Oireachtas is entitled to do so, that if the judge goes outside the tariff laid down by the Oireachtas he should explain in open court why he or she is so doing.

A completely new approach is needed to sentencing. The fundamental basis is that at least we have a database, a register of sentences. That is the centrepiece of this series of amendments. If we agree to establish that database we will start the process, at long last, of the beginning of the end for inconsistency in sentencing. As long as we do not have that register of sentences we will continue with the present ad hoc approach, helped here and there by directions from appeal decisions from the Court of Criminal Appeal and so on, but essentially still an ad hoc system.

The other proposals relating to amendment No. 66 deal with the issue of a register of sentences and access to it. What I would like to see is an approach whereby the minimum basic tool is available to judges in particular but to everybody else who is involved in the criminal justice system to enable us to begin the process of eliminating inconsistency in sentencing in our courts.

This is an important and useful debate that links in to a parliamentary question I have tabled, which we shall deal with later, on the issue of judicial conduct. Before the Minister's time, he was, no doubt, involved in wearing a different hat as Attorney General, and we had a great debate on the general public concern that, while we are very well served by excellent judges, each appears to be a corporate soul in his or her own court. It is important for the public to have faith in the criminal justice system if there is to be certainty and consistency in regard to judgments.

The information we get is often partial. Nobody sits through a full court case. Even the court reporter can only synopsise the flavour, demeanour and all that takes place over several days of a court case in a few paragraphs, but that does not give the full picture. Sometimes judges are unfairly criticised.

There is a need to bring the judicial arm of the justice system into a structure that allows for consistency and confidence in the system. That has to be done in such a way that gives it absolute independence. It is a hard balance to strike, I do not pretend it is an easy one. Deputy Jim O'Keeffe said there should be an explanation, but for many it would be a horrific intrusion to have to explain in open court why they are doing something while for others it would be normal transparency.

There is a need to look at the whole issue of judicial conduct, training and conferencing so that shared values and understanding of evolving societal matters are fully comprehended across the Judiciary and everybody buys into it, and that there are better communications with this House and the Judiciary in regard to the intention of the law makers as opposed to the law interpreters. In that context, the suggestions by Deputies Ó Snodaigh and Jim O'Keeffe concerning understood tariffs and guidelines are useful. If there is disagreement about them it should be a two-way dialogue so that we can better understand the reasoning of the Judiciary, and craft our laws better than we currently do to suit the needs of the process. Having practised for many years in the courts, the Tánaiste is particularly well placed to bring that judgment to the House. The independence, which is important, has led to a disconnect that is eroding public confidence. Probably to political advantage and to the annoyance of many of his former legal colleagues, the Tánaiste made great play of public concern over some judicial decisions. While we make the law and set tariffs in primary statutes, they must be interpreted and administered in the courts in an understandable, parallel and consistent manner. In that way, the public can have confidence in us as law-makers and in the Judiciary as law interpreters and decision-makers on individual cases.

The debate on sentencing is an important one but it is not taking place beyond the few Members present who are interested, as well as members of the Bar or the Law Society. Obviously judges themselves would have a view on it. Sometimes we are forced to react by sensational headlines about a perceived wrong or inconsistent sentencing by a judge, but I am concerned that the debate has not dealt fully with such matters. There is an increasing rush towards mandatory sentencing rather than towards my proposal in the amendment that was ruled out of order, which was to set out proposed minimum or possible maximum sentences when legislation is being framed. However, we should leave it to a judge's discretion having heard all aspects of a case. Sometimes people are rightly concerned if there is a wide divergence between sentences on the basis of what they see. One way of addressing that would be to establish guidelines when we frame legislation. Such guidelines would not detract from judicial discretion. That discretion is required and, if at all possible, we should not interfere with it. Mandatory sentencing, however, is interfering with the role, duties and responsibilities we place on judges. Their sentencing might not be appropriate sometimes, in our view, but as other Deputies have said, we have not sat through the entire court case, nor have we heard all the ins and outs of a case. It can be quite harrowing for the victims of an offence to find that the perpetrator has received a suspended sentence or a lesser sentence than the victim presumed the judge would impose. We could examine other mechanisms in the case of acquittal, which were mentioned earlier in the debate. Those matters should be examined together with sentencing generally and, as Deputy Howlin said, allowing the DPP to submit an appeal against what may be considered a lenient sentence or acquittal. I would like those matters to be teased out along with sentencing because they are all intertwined, which is the problem if we proceed as suggested by this section of the Bill.

First, I would like to address Deputy Jim O'Keeffe's specific proposals. A working group on sentencing in the courts is currently operating in the Dublin Circuit Court.

Who are they?

It is chaired by Mrs. Justice Denham and includes Mr. Justice Kevin O'Higgins, Mr. Justice Esmonde Smith, Her Honour Judge Miriam Malone and Professor Tom O'Malley. They are reviewing sentencing systems worldwide and have decided to establish a pilot project in the Dublin Circuit Court. I understand that two researchers have been selected to collect and collate information on sentencing outcomes in cases on indictment in designated courts, in accordance with criteria specified by the committee. The objectives of that project are to identify criteria and other information employed by the Judiciary in sentencing for particular types of offence in criminal proceedings; to record and retrieve such information in individual cases; to design and develop a database to store the information retrieved and to enable its retrieval in accordance with various search criteria; to share or disseminate the information utilising information or communications technology via a judge's intranet or other means; and to assemble appropriate material on sentencing for a bench book and website. That work is ongoing and, in fairness, I should acknowledge that it is a judge-led initiative in this area.

Deputy Jim O'Keeffe's proposal is an elaborate one, but I hope he will not mind me saying that I think it is overly ambitious at this stage. It would require a vast amount of work to be done concerning every offence in every court. The case number of the offence and the particular offence could be done on a computer, but it would take a lot of work by officials to put down any mitigating factors relied on by the convicted person or his or her defence counsel. They would have to listen to and note the arguments and put them down in some written form. They would also have to put down the person's previous convictions as well as details of the offence. They would have to follow it up by dealing with the Prison Service to find out if the sentence was served or if early releases occurred. Such things would be extremely complicated to do. It may be that in a perfect world there would be sufficient human resources to deal with such matters, but at the moment I cannot honestly accept the amendment because I could never implement its provisions within existing resources. Members of the Judiciary would probably have to spend a lot of their time inputting this material, otherwise registrars or specially appointed court officials would have to do this kind of work.

I fully accept what Deputy Jim O'Keeffe said, that the purpose of this proposal is to give people a picture of what is going on in the courts. However, if it is not an accurate picture it will be misleading. One cannot just establish it and allow it to tick over, otherwise the media would draw inaccurate or incomplete pictures from the relevant data. We must ask ourselves whether what the Courts Service and the Judiciary have done is more promising than what Deputy Jim O'Keeffe is doing. I tend to think that it is, in terms of giving us a statistical knowledge of what is going on. The Deputy's proposal is not really worthwhile, unless he has some strong objection.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.