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Seanad Éireann debate -
Wednesday, 24 Mar 1993

Vol. 135 No. 8

Criminal Justice Bill, 1993: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

I welcome the Minister to the House and congratulate him on the speed with which this legislation was introduced. It is the first of a series of Bills the Minister intends to bring before both Houses so as to update and reform our criminal laws and this move will be welcomed by the community. I look forward to new provisions especially concerning loitering and order in public places, which could be included in the new legislation.

When I spoke in the House about the Kilkenny incest case I said I hoped that we would not just talk about it for an hour and then forget it. We have a responsibility to ensure we do not just pay lip service to the need for reforms highlighted by that case. I am pleased that this Bill is the second to come before the House since then. Unfortunately, this legislation will not affect judicial decisions already taken, but victims of past crimes may feel that their suffering has achieved something worthwhile.

The Minister referred to the Criminal Law (Rape) Acts, 1981 and 1990 and said they provided anonymity for the victim. I wish to inform the Minister and Minister of State that the media are arguing for a judicial review, to allow them appeal cases held in camera. This request does not apply solely to rape trials but to all cases held in camera. Victims should be kept foremost in mind if any changes are proposed in this matter.

I welcome changes whereby rape victims will be given copies of their statement and pre-trial consultations. Many victims of rape and incest have felt that it was they who were on trial. Female members of the garda are heavily involved in the prosecution of sex offenders and increased recruitment of women to the force means that more victims of sexual and violent assault will be dealt with sympathetically. That is not too say that complainants would not have been dealt with sympathetically by male gardaí, but complainants who are usually femle would feel more at ease with a female garda.

I welcome the fact that this legislation is easy to interpret and understand and that it is victim-oriented. At many public meetings I have attended fears have been expressed that victims are forgotten except as statistics; this legislation should restore public confidence in that regard. Faith in the criminal justice system had diminished to the point where victims felt there was no point in reporting a case because little was done for them at the end of the day.

Section 6 deals with payment of compensation and I have questions about this provision. The courts are authorised to require offenders to pay compensation to their victims for any injury or loss. Does this authorisation extend to parents of offenders as there have been calls to make parents accountable for the offences of their children? This part of the legislation could cause the Minister difficulty since if the perpetrator of an offence is incapable of paying compensation to the victim, this provision is weakened. Could the Minister say he intends to introduce a provision to make parents accountable for the crimes of their children?

This legislation differs slightly from the Criminal Justice Bill, 1992 in that in this Bill compensation for victims will be secured not by the victim but by a third party.

Section 8 deals with appeals of lenient sentences. I echo the sentiments of the Minister that we comment regularly on the apparent leniency of sentences. Probably this is so because such cases are highlighted in the media while the vast number of appropriate sentences go unnoticed. I would not like to suggest that the Judiciary are not competent to carry out their work but this provision is welcome, particularly in the light of the Lavinia Kerwick and Kilkenny incest cases. The Minister said this Bill will not affect sentences handed down before it comes into effect. I hope past victims will feel that highlighting their cases has been worthwhile.

The Minister referred to the judicial power to take guilty pleas and the offender's age and mental capacity into consideration. I know of a case where a father was sentenced and family members asked that the sentence be reduced. There is a case for harsh sentencing for serious crimes but there is also a case for taking family wishes into consideration. I support the right of judges to impose varied sentences. However, sentences which deviate considerably from the norm may need to be looked at.

It is correct that the time limit for bringing an appeal against the leniency of a sentence should be no more than 28 days. Could the Minister say on whose advice would a review of sentence be taken? Would the Director of Public Prosecutions do so or would the victim have to request the Director of Public Prosecutions to do so? Who decides that the sentence has been too lenient, the DPP or the victim's family? The Minister's approach to the legislation in section 2 in relation to unduly lenient sentencing is sensible. It would be sad if the legal process was impeded by cases being taken because it was felt that a sentence of six months to a year was too short or vice versa. Our laws should be sensibly drafted and enforceable.

Section 5 states that an impact assessment should be carried out on the victim, which is long overdue. It humanises our legislation by asking what has happened to the person since the crime was carried out. It is ludicrous that environmental impact studies have been carried out in relation to planning matters and yet, at this late stage, that we are only considering victim impact. We cannot comprehend the trauma experienced by the victims of crime and it is wrong for our system of justice to treat them in a cold, clinical way. The victim support group will probably feel that section 5 is a timely and welcome development.

Will the Minister explain how compensation will be dealt with in cases specifically referred to in this legislation? At present, the criminal courts can award compensation. Most of the people engaged in loitering and public disorder in the capital city are minors and the Minister will probably deal with this in other legislation. Although the thrust of the legislation in relation to compensation is good, will it be effective if a large number of problems, other than sexual abuse crimes which are specifically mentioned in this legislation, are created by minors? I referred previously to parental responsibility. Will there be an extension of the criminal justice system to make parents responsible for their children's behaviour? Gardaí have told me that in cases in which minors were involved, not alone did the parents not accept responsibility, they refused to go to the Garda station. How can we ensure that victims feel their case is being taken seriously and that there is justice if minors are perpetrating the crime and parents will not stand by them in court? Will provision be made for compensation to be paid in instalments and, if so, by what mechanism will this be done?

The change in the legislation which allows video recordings of evidence to be admissible at trial is welcome. The Minister mentions that a technical amendment to the Criminal Procedure Act, 1967, may be necessary to remove any doubt as to whether a written deposition should also be taken in these cases. I urge the Minister to put the necessary technical amendments in place immediately because the use of video recordings would involve children and sexual abuse. It would be undesirable, indeed horrific, if having tried to make it as easy as possible for children and victims of sexual assault to make their case, we then insisted that they must make a written submission or deposition. We must do everything possible to ensure that children are not subjected to this procedure. If technical amendments are needed, I urge the Minister to introduce them immediately.

I welcome the increase from seven to 20 years' imprisonment as the maximum penalty for incest against a female person aged 15 years or over. The Minister also highlights the fact that there is — and always has been — a provision for a judge to impose a maximum penalty of life imprisonment for an offence against female persons under the age of 15 years and a penalty of seven year's imprisonment if the offence is against a person over 15 years. I also welcome the Minister's statement in relation to treatment for a female person who has been a victim of incest. Will the Minister state whether this legislation covers such crimes against a male minor? Sexual abuse is certainly not limited to women. Cases which affected young women have been discussed here in the past. However, I am quite sure that this is not solely the domain of young women and girls. Perhaps the Minister will reassure me that this part of the legislation covers crimes of sexual abuse against young boys as well as girls.

The Minister said that the existing law would have allowed for greater sentencing but, as I said, this was not the position. The unduly lenient sentences imposed in the two previous cases meant that the Minister had to take the initiative and ensure that the Judiciary knew that public opinion did not consider the sentencing appropriate. It is not our function to criticise the Judiciary but if the Minister had not taken the initiative the general populace would have felt that they had been badly let down. I am grateful that the Minister acted with such speed.

The Minister also said that treatment programmes for prisoners should be considered. In my submission on the Kilkenny case I made the point that locking up offenders and regarding it as treatment is an inappropriate way to deal with the crime. I also said that the Minister should give consideration to ensuring that treatment for victims should be on a statutory basis. As this legislation is very victim oriented I ask the Minister to consider doing so. There was a reference in both Houses to the fact that the rape crisis centres are severly underfunded. A number of Senators said that although the situation in Dublin is bad, there are areas throughout the country which do not have a rape crisis centre. I urge that treatment for both offender and victim should be on a statutory basis, then we will have put our money where our mouth is.

Arbour Hill prison has a good reputation for providing services for its inmates and these services should be extended to all places of detention. The Minister also said that she was looking at a number of constructive proposals which had been put forward in the Dáil.

With regard to the suggestion that the perpetrator of the crime should not be allowed to return to the house, that can be one of the conditions when granting bail. All too often, in the cases with which I am familiar and probably generally, the victim is removed from the home. I know this is done for his or her safety but the victim usually feels that he or she has done something wrong. If not, why would he or she be removed from their family? The safety of the victim is paramount but, because of the way our legislation is enacted at present, the victim is removed and the perpetrator is left in the home. Hence, there is a belief that the victim is penalised. I know the Minister is aware of this and that he will consider any suggestions which would ensure that the victim does not suffer any further and that the accused or convicted person is told to stay away from the victim's house.

Unfortunately, when an accused person has served their sentence, nothing can be done to keep them from the home environment or, indeed, the environment where the crime took place. I know of a woman and her children who left their home. It was not a case of sexual abuse but one of violence and, despite the fact that the woman had secured a barring order, her husband regularly arrived back at the house. The Garda could only contain the situation so, in frustration, she and her children left the home and went to England. Our legislation must protect people who are exposed to violent crime.

I welcome the fact that the legislation has been introduced so speedily. When I mentioned at a recent public meeting on law and order that the Minister would introduce the Criminal Justice Bill, the cynics in the audience said that it would never happen. The manner in which the Minister has approached her portfolio gives lie to that and the suggestion that crime is treated in a lenient fashion. The Minister is adamant that law and order will be a priority and I look forward to further reforming legislation.

I thank the Senators for their constructive contributions. A number of technical points have been raised.

I will deal with the legal points raised by Senator McGennis first. The Senator asked about the circumstances in which parents must pay compensation for crimes perpetrated by their children. In section 6 of this Bill the court will be enabled to grant a compensation order against the parents or guardians of children who have committed a crime in the same circumstances as the courts can now order parents or guardians to pay compensation for crimes perpetrated by their children; that is governed by section 99 of the Children Act, 1908. It makes it mandatory for the court to order the parent or guardian to pay compensation when the child is under 15 years. It gives the court a discretion to order the parent or guardian to pay compensation where the child is aged between 15 and 17 years.

Unfortunately, there are severe legal constraints on the court. It must be established, for example, that the parent in some way assisted in the commission of the offence. Due to that provision and the inadequacy of the fines which can be imposed, that discretion has not been generally used. In 1982 child care legislation in the UK was updated and a more flexible formula was used. We will look at that formula and at the experience in the UK since the change in 1982 in the context of the Juvenile Justice Bill.

The Senator asked in what circumstances or on whose advice would the DPP decide to appeal a sentence which he considers over-lenient. The DPP will be advised by his prosecution team who will give him a report on the case and he will decide, on the basis of that report, whether he should look for the various papers, which he is entitled to get from the court registrar under this legislation. There is nothing in the legislation or in law to stop the victim communicating directly with the DPP.

The Senator also asked if compensation can be paid in instalments. Section 6 (6) of the legislation provides that compensation can be paid in instalments. The compensation section of the legislation is taken directly from the Criminal Damage Act, 1991 — I participated, as a backbencher, in the debate on Committee Stage of that Act. It provided that compensation can be granted by the courts in criminal cases to victims who have suffered damage to their property. We are extending it to enable victims who have suffered personal injury or loss to be compensated. The compensation can be paid in instalments. The same provisions apply to cases of incest against males as apply to such cases against females.

I thank Senators for their contributions and I appreciate the constructive approach taken. I am pleased there is general agreement on the need for this Bill and the need to make the criminal justice system more victim oriented. Senator Crowley highlighted the problems facing victims of crime. Senator Henry, Senator Honan and Senator Cotter raised the question of mandatory reporting of incest and child abuse cases. This issue was raised in the Law Reform Commission report on child sexual abuse. The question of funding for the rape crisis centres also arose. Both matters are dealt with by the Minister for Health, and I shall communicate the views of the House to him. This year the Minister announced a 90 per cent increase on last year's grant for the rape crisis centres and, while we may be starting from a low base, it is not a bad start.

Senator Gallagher raised a number of detailed technical points in the Bill. She asked about section 3 (3). Subsection (3) provides that the Act will not apply to sentences imposed on persons convicted before the Act comes into operation. The Act will come into operation one month after it has been passed; that is provided in section 14 (2). If we allow this to apply retrospectively or if we allowed it to apply to people who had been sentenced before the Act came into operation, that would certainly be unconstitutional. There is a constitutional provision against retrospection in criminal legislation and one could hardly think of a better example of criminal legislation than giving the prosecution the right to appeal against leniency of sentence. Senator O'Toole indicated his intention to put down such an amendment but that amendment will be opposed because we cannot allow the Oireachtas to pass legislation which will be struck down by the courts. That would be most irresponsible.

The words in the subsection, "on persons convicted", ensures that the Bill does not cover cases where people are convicted before the Bill comes into force. The reason for the change in terminology was that there could be a case in which a person is convicted and the judge postpones sentence to await reports etc. If a person is convicted on the day before the Act comes into force, from the point of view of the criminal justice system that case is complete; the sentence is postponed but the new legislation will not apply to that person. It will only apply to convictions from the date the Bill comes into force, which will be one month after the Bill is passed.

Senator Gallagher also asked if a convicted person would be entitled to legal aid in the case of an appeal. Yes is the short answer. Even if the case goes to the Supreme Court on a point of law the legal aid will continue into that court because the person has already been prosecuted through the courts. However, if the prosecution authorities feel the sentence is too lenient and if they and the DPP decide to put this person through the further process of contesting the DPP's appeal to have the sentence increased, it is logical and right that that person should get legal aid. Therefore, the answer to the Senator's question is yes.

Senator Gallagher was also worried about a review by the Supreme Court of an acquittal. I assure the Senator and the House there is nothing in this legislation to enable the DPP to ask the Supreme Court, the Court of Criminal Appeal or any other court to review an acquittal.

Senator Gallagher also asked about the fact that a person who receives a 20 year sentence will normally serve longer than a person sentenced to life imprisonment. In some cases that has happened but it is very unusual. There is no established norm as to the length of time a person with a life sentence will spend in custody. Each case is now reviewed by an independent sentence review group who makes recommendations to the Minister having examined each case. There is no foundation for the general statement that a person sentenced to a term of imprisonment for life will spend only eight years in custody. A number of people with life sentences have spent considerably longer in prison.

Senator Neville asked about the abolition of wigs and gowns to reduce the formalities facing victims giving evidence in our courts. I agree with what the Senator said. Wearing wigs and gowns has been abolished in certain family law cases. The wearing of wigs and gowns by counsel is covered by the Rules of the Superior Court. As a result of a debate in the Dáil on the Criminal Evidence Bill a year ago, I contacted the chairman of the Bar Council to ask him about the abolition of wigs and gowns. He told me the Bar had set up a Dress Committee to consider this question and that that committee would be reporting to the annual general meeting of the Bar in that legal term. That term started in October but I have heard not one word from the Bar Council, the Dress Committee, the registrar or chairman since. I wish to thank my Limerick colleague, Senator Neville, for bringing this matter to my attention because I shall contact the chairman of the Bar Council tomorrow to tell him the Senator is most anxious about it.

The Minister for Justice, Senator Roche and others expressed concern about the need to protect victims both before a trial takes place and after the convicted person is released. This matter is being examined and, if appropriate, it will be dealt with in future legislation. I listened carefully to what Senator Roche had to say about that and I agreed with him.

Senator Bohan made a number of suggestions for improving the existing criminal justice system. I will give careful consideration to these matters. The Senator mentioned the courts have power to impose consecutive sentences for offences committed by a person on bail. Bail is a subject for another debate and I will not discuss it now.

Senator Roche asked how the review process for sentence will be initiated. I have already said in reply to Senator McGennis that the DPP will get a report from his prosecuting team. He will decide on the basis of that report. For the benefit of Senator Roche and other Senators who raised this, we have been in contact with the DPP about this issue and he feels he will be able to handle it adequately. There is nothing to stop the victim communicating directly with the DPP about this. Under section 6 of the Prosecution of Offences Act, 1974, certain communications with the DPP are prohibited but this does not fall within the ambit of that section so there is nothing to stop the victim communicating directly with the DPP. The victim can also communicate with the DPP indirectly through his or her public representative or any other representative. Senator Roche also asked about reviewing the operation of the Bill. This area will be kept under constant review.

Senator Norris raised the question of sentencing policy whereas Senator Enright raised the more specific point that the DPP should have guidelines on sentencing. I would like to announce to the House that the long awaited Law Reform Commission Consultation Paper on Sentencing is expected to be published tomorrow and we look forward to it with great interest. The commission paper will no doubt address a number of issues arising from the debate on this Bill and I look forward to hearing the views of the Law Reform Commission.

This is an area where there is considerable scope for development. Senators may wonder why we brought this legislation in without benefit of this consultation paper. We thought it would be published sooner. Despite repeated signals that it would appear, it did not. In the meantime, the Lavinia Kerwick case came up, the general election delayed us further, then there was the Kilkenny case and I understand there are a number of serious cases of this sort in the pipeline. We thought it best to move ahead. The report to be published tomorrow will be most interesting and it may require further changes here but it would be better to put this Bill on the Statute Book so that any sentences handed down in cases about to come before the courts can be reviewed if necessary.

Senator Norris asked about a mechanism to review sentences that might be too harsh. I do not understand what he was talking about. The existing appeal system allows one to appeal in such a case. The reason for the relevant section of this Bill is that there was no mechanism for the prosecution to appeal where the sentence is too lenient. Senator Norris may be confusing this with the lack of a legal mechanism to bring a case back before the courts when the judicial process has been exhausted, such as there is in the United Kingdom. Senators will be aware that a commission was set up under the chairmanship of Judge Frank Martin which made recommendations in that regard. I assure the Seanad we will be moving ahead shortly to bring in legislation based on the Martin commission report.

Senator O'Toole asked about making the legislation retrospective. That would be unconstitutional and I have no intention of having any part of this legislation struck down because that would bring us back to square one. He also asked whether the suicide rate in Irish prisons is higher than other European countries. I do not have the appropriate figures or statistics here but I undertake to get in touch with him.

Senator Enright was worried about the 28 day period allowed to the DPP to seek a review of a sentence. We have been in touch with the DPP about this and he is satisfied that the 28 day period is adequate. I do not want to increase the period. In many cases, such as the Lavinia Kerwick case, a non-custodial sentence is imposed. If a person gets a non-custodial sentence, is it fair or just that he be waiting a long time to see if the DPP will seek to have a custodial sentence imposed on him? I think 28 days strikes the right balance, although it is a short period. The important thing is that the DPP, the person charged with taking the appeal, is satisfied that he will be able to do his business within the 28 day period.

Senator Ormonde asked about appeals from the Central Criminal Court to the Supreme Court. The Bill only deals with the right of appeal of the DPP against unduly lenient sentences. It provides a statutory avenue of appeal to the Court of Criminal Appeal. We can all rest assured the DPP is not going to ignore the provisions of this Bill and attempt a direct appeal to the Supreme Court on a question of sentencing. Direct appeal to the Supreme Court by a convicted person raises issues outside the scope of this Bill but this issue will be tackled in other criminal justice legislation to be introduced shortly.

Senator Ormonde also raised a question about section 3 (1) of the Bill. This provision follows the existing law as set out in section 29 of the Courts of Justice Act, 1924 and section 3 of the Prosecution of Offences Act, 1974. Under these sections, those who may grant a certificate allowing an appeal on a point of law from the Court of Criminal Appeal to the Supreme Court are the Court of Criminal Appeal itself, the Attorney General or the Director of Public Prosecutions. I also assure Senator Ormonde we will be looking at how to improve coordination among the different services dealing with victims and the rehabilitation of offenders.

Some Senators were concerned to ensure the victims views were adequately taken into account by the court. Senator Cotter talked about a consultation process between the judge and the victim on the sentence to be imposed. While I do not know whether this would be the best approach, I would like to make the following points. First, the Bill obliges the court to take into account the effect on the victim in determining the sentence. Second, under the Bill the victim has the right to address the Court in this issue if he or she so wishes. This should ensure the victim's views are fully taken into account. The question of independent legal representation was looked at by the Law Reform Commission, and more recently by the Second Commission on the Status of Women, and both have come out strongly against it and, in my view, for very good reasons. The latest recommendations of that commission which have implications for the Department of Justice, are being examined and some have already been implemented.

I have covered the main points in this Bill and do not think I missed any points raised. Committee Stage is tomorrow from 4 p.m. to 9 p.m. when no doubt we will have further, more detailed, discussion on some of the technical aspects of this legislation and when we will deal with amendments put down. I thank Senators from all sides for their constructive and helpful approach. My approach to amendments will not be partisan or dogmatic. My objective is to achieve the best legislation and I know that I will have Senators' co-operation.

Question put and agreed to.
Committee Stage ordered for Thursday, 25 March 1993.
Sitting suspended at 8.45 p.m. and resumed at 8.50 p.m.
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