Seanad Éireann debate -
Thursday, 25 Mar 1993

Vol. 135 No. 9

Criminal Justice Bill, 1993: Committee and Final Stages.

NEW SECTION.

Ms Honan

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;

(c) the offence or offences in respect of which such sentence was imposed; and

(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.".

This Bill today has been introduced because of lenient sentences handed down by the courts and over the past number of weeks we have expressed our concern about this matter. Under the present system the Minister for Justice can commute or reduce fines and sentences imposed by judges if they are seen to be too severe. While there was a public outcry about recent cases, there will always be a public outcry against reducing certain sentences. Judges impose sentences in open court and if they are seen to be too lenient they will be criticised.

Since any sentence imposed by the courts is public knowledge, I cannot see how it would interfere with the privacy of the person if my amendment was accepted. Many judges and lawyers and the Garda are annoyed that sentences can be reduced without the public being aware of it. Many people, including Deputies and Senators make representations to the Minister. I am not suggesting that this power should be taken from the Minister but, if a sentence is reduced it should be known to the public. That is why I put down this amendment.

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

The amendment in the name of Senator Honan refers to sentences of imprisonment or fines or community service orders, any decision to commute or remit those being published in Iris Oifigiúil. Members will be aware that Senators, like Deputies, county councillors and, other public representatives, get constant representations to apply to the Minister for Justice to petition to have a fine reduced. This happens in many cases. Many of my constituents would be in prison if that power did not exist and was not exercised in a humane manner by the Minister. If we were to use Iris Oifigiúil to publish details of every fine, sentence and community service order that was remitted, we would require a separate issue to cover the multifarious details that would be necessary.

I do not believe it would serve any practical purpose. That is the bottom line. Even if there were not practical, logistical problems, I believe there is a general duty to preserve, as far as we can, the privacy of people once committed to custody. These people already suffer a high degree of deprivation and stigmatisation and it would be contrary to all accepted international practice to add to that deprivation and stigmatisation by publishing lists on a monthly basis in Iris Oifigiúil. I do not believe it would be just, as it would be an addition to the sentence imposed. I do not see that any good objective could be achieved by publishing the list and, in any event, it would be impractical.

I am disinclined to accept the amendment.

Ms Gallagher

I agree with what the Minister has said on what appears to be a lack of purpose with regard to this amendment. Senator Honan has said its purpose is to address lenient sentencing. I would remind Senator Honan of the separation of powers; it is the function of the Judiciary to decide on sentencing and it is not something that we should interfere with.

I object to the proposed amendment on the basis that it blacklists people. It would publish a person's name, and that would be on the official records for life. People have a right to their good name. On conviction, they serve their sentence and that should be the end of the matter.

The amendment suggests that there is a need to control the discretion of the Minister in areas where he may decide to commute or remit a sentence, but there is no evidence of this. Therefore, this proposal is unnecessary. In addition, it would add an administrative burden at great cost. I believe it is impractical and unhelpful.

Mr. Enright

I can understand to some extent why this amendment has been moved. On a recent chat show somebody spoke about interference by Ministers in judicial decisions. Over the years Members from all parties have made representations to various Ministers for Justice; I believe the decisions arrived at on foot of my representations were fair. The only comment I would make is that on most occasions the Minister was not lenient enough.

Many people, particularly from the poorer sections of our community, who have been fined and have had a conviction recorded against them in court, have been through a traumatic experience. Some of them do not have the financial resources to appeal their case. Since they do not have the finances to have a barrister or a solicitor pursue an appeal in a higher court they take the option of asking their local public representative to petition the Minister for Justice to have the fine mitigated.

With regard to petitioning the Minister for Justice, my understanding of the procedure is as follows: if a conviction has been recorded and an appeal made to the Minister for Justice, the Minister arranges that consultation takes place with the judge who made the decision. The District Court Clerk and the relevant garda are also contacted. Each of these people report back to the Minister who then makes a decision with the advice of his staff. That is how I understood the procedure to work and I think it has worked well. The one complaint I would have with it is the length of time it takes. There are some experienced Department of Justice officials here who can advise the Minister of State on this aspect. It takes a minimum of 12 to 15 months to pursue many of these procedures.

I see a problem, however, with Senator Honan's amendment. Somebody may be convicted of being drunk and disorderly and fined £200 and the details of the case are published in the local papers for all to see. That person might give up drink and make an effort to rehabilitate himself, and then 12 or 15 months later the Minister's decision and the details of the case appear in Iris Oifigiúil. Senator Gallagher made the point that the trauma of the conviction is suffering enough, and this is added to 12 or 15 months later with the publication of the Minister's decision, for example, to reduce the fine from £200 to £175, and extend the time for payment by three months.

Although I understand the point of Senator Honan's amendment I would have reservations about it and I would ask her not to press the amendment.

Mrs. McGennis

While the intention of the amendment is good, if it were accepted it would harm the families of people found guilty of offences and not necessarily the person who had been found guilty. As Senator Enright said, there is usually some publicity in the wake of a conviction that may die down shortly afterwards. However, with the subsequent publication in Iris Oifigiúil there might be further sensationalising of the case. These cases may involve fines of perhaps £100 to £500 for offences relating to dog licences or TV licences. For various reasons people fail to attend at court, and they, or their public representatives, end up petitioning the Minister. While it is the intention that a record would be kept of what exactly is happening in our justice system, if this amendment were accepted it might serve to stigmatise the family more than the person who had been found guilty. Cases may be seized on again by the media and dealt with in the same way as inclusions in Stubbs Gazette.

We have legislation before us to deal with too lenient sentencing. The focus of the debate in this House in previous weeks, and indeed yesterday, concerned sentences that are seen to be so lenient as to be an insult to the community at large and an insult to the victim of the crime. I do not think this amendment is in keeping with the tone of the legislation we discussed recently. The net effect of the amendment would be damaging for the families of people who have been convicted of an offence.

Ms Honan

Senator Gallagher talked about the independence of the Judiciary. I do not think that aspect is being called into question here. These are decisions handed down by the Judiciary which are being appealed to the Minister. I do not think that this power should be removed from the Minister but many gardaí and judges feel some disquiet that this could happen. Many politicians have been critical recently, both in these Houses and in public, of decisions taken by the Judiciary. At the same time, however, they are petitioning the Minister for Justice to have sentences or fines reduced without it being public knowledge. Until this week I did not know that one could petition the Minister to have sentences commuted or to have fines reduced.

I accept that embarrassment can be caused to families but these matters are public knowledge and if people were concerned about them they would pay their fines and would not appeal them. There may be some people who just decide as a matter of form to petition the Minister simply because they can take that action. They go to their local TD or public representative and petition the Minister.

Senator Enright talked about waiting 12 months to have a fine of £200 reduced to £175 and getting an extra three months to pay. If somebody is going to pay £175, surely they would pay £200 rather than go through this process and have the result published. We must be consistent. If we decide we can be critical of judges when they impose lenient sentences, we must be aware that they may equally be critical of us for trying to have sentences reduced.

Mr. Neville

I understand and support the spirit of what Senator Honan is saying. She wants to have more openness and transparency in the operation of the criminal justice system. I have problems with the publication of court cases in the local press; in most cases this is of more concern to the people involved than the fine or the sentence itself. While I agree with transparency, that everything should be open to the public, to be seen to be fair, I have problems with the way the local press sometimes publish cases. I do not know if this can be examined or controlled in any way. Nobody wants to be accused of curbing the freedom of the press, but the publicity sometimes given to small fines is disproportionate to the offence.

Our justice system must be seen to operate fairly. Senator Honan is saying there is a procedure whereby fines or sentences are changed which is not transparent or open to scrutiny by the public; the thinking behind the amendment is worthwhile in that respect. Whether this process should be published in the press is another matter, but there is no reason it should not be available for inspection by the public, if they so wish.

I cannot understand anybody saying the amendment proposes to limit the discretion of the Minister to reduce fines or sentences. In my view, the amendment, expressly wants to lend transparency to the whole area of changing sentences or fines and in that respect it is worthwhile.

Mr. O'Dea

Senator Neville has put his finger on the main point. I do not think there is any need to have a greater degree of transparency in the system. It is quite transparent already to a degree that makes Senator Neville and, at times, myself unhappy. I understand there is no way we can control how these matters are reported in the local press. If an article is published to the embarrassment of the accused and a fine or prison sentence is later imposed which the Minister decides subsequently to commute, no great purpose is served by a further publication in Iris Oifigiúil.

Senator Honan raised a question in relation to Senator Enright's example of a £200 fine which was reduced to £175. She asked quite reasonably why one would go through a rigmarole to have a fine reduced to £175 a year later when one could have paid £200 in the first instance. A person petitioning the Minister does not know what the ultimate outcome will be. A significant reduction could be made. More importantly, in my own constituency people come to me to petition a fine in order to delay collection. We have to face the fact that 300,000 people are unemployed. A large number of people depend on social welfare payments and to such persons £200 or even £20 is a great deal of money to pay at one time. When people come to ask me about petition procedure, I say that I will petition the Minister for Justice who may reduce the fine but I advise them to put some money aside each week in case of a refusal. Without a petition procedure a fine would be collected immediately and a person who could not come up with the money would be imprisoned. Prisons would overflow; we would have to build new ones. The situation would be quite ridiculous.

I agree with Senator Enright about the length of time that petitions can take. A couple of years ago it took an enormous length of time. The advantage there is that people have longer to put the money together. However, there is a down side also. I recall, in the mid-1980s, petitioning a case to the Minister for Justice in relation to a £100 fine imposed on somebody in 1985 and getting a letter in 1987 saying that the fine had been reduced to £90. It came as a great shock to the person who approached me in the first place.

Mr. Enright

That is why the Minister did so well in the 1987 election.

Mr. O'Dea

The period has been reduced. I want to clarify one point. When somebody approaches me, I am in the same position as any other Senator or TD. I have to send my petition to the Minister for Justice as well. I have had some results from petitions to the present Minister for Justice, as have some of my colleagues on the backbenches and she has been in office only a couple of months. That would indicate that the time period has been reduced considerably.

Mr. Enright

It also shows that there must be a big increase in the staff in the Minister's office. Take the example of a married man with a family, serving a two year prison sentence who has already served about 12 months. His wife goes to a Senator, a TD or a Minister and asks for her husband to be released for three days over the Christmas period — until St. Stephen's Day. I am not speaking about people who were sentenced for crimes such as armed robbery, malicious injury, assaults or serious crimes because normally the Minister would not even consider a petition in those circumstances and most public representatives would not make representations on their behalf. I am referring to people who were found guilty of petty crime. In most instances the Department and the Minister have allowed those people home for Christmas. Because of the number of representations made it would be impractical to publish all the names in Iris Oifigiúil.

I referred to fines being reduced from £200 to £175 but I have seen instances where the fine was written off. The existing system has worked reasonably well and is fair.

Ms Honan

The Minister said he advises many of the people who come to him to appeal in order to extend the time to pay the fine. There must be some other procedure, especially in the District Court, where people could pay the fine over a period or by instalment. People should not have to go to their local representative to petition the Minister. There must be some other method that could be arranged.

Mr. Neville

We have asked on numerous occasions for the examination of the payment of fines by instalment or by other methods. That would overcome many of the difficulties. It must be accepted that within the criminal justice system the courts and their decisions are open to public scrutiny. The subsequent decision of the Minister is private, and unknown. This amendment proposes to allow the public to scrutinise such decisions because they are closely related to and follow on from the decision of the court.

Mr. O'Dea

I will deal with Senator Honan's point. I would favour an instalment arrangement. It would make my life and public representatives' lives generally a lot easier. The reason the demands from all sides of the political divide for an instalment arrangement have been resisted is that a great deal of Garda time and effort go into collecting fines. If instalment arrangements were allowed, the administrative burden on the Garda, who should not be doing this type of work, would be increased out of proportion. The gardaí in Limerick have told me they put many man hours into collecting fines per se when the time for payment ultimately comes. They could not imagine the horror of collection if an instalment arrangement was introduced. A person will pay their instalments for two or three weeks, then if an instalment is missed the Garda would have to chase them for the next instalment, and this could be repeated a number of times. That would make the collection of fines administratively very difficult.

I will put the suggestion to the Minister for Justice again and I hope we will have a better system where people can pay over a period rather than the informal instalment arrangement we have at present.

Amendment, by leave, withdrawn.

SECTION 1.

Acting Chairman (Mr. Fitzgerald)

Amendment No. 7 is consequential on amendment No. 2 and they may be discussed together.

Mr. Neville

I move amendment No. 2:

In page 3, subsection (1), between lines 15 and 16, to insert the following definition:

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

Amendment No. 7 reads as follows:

In page 5, before section 6, to insert the following new section:

6.—(1) 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.

(2) 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 section 5, 6, 7 and 8 of the Act of 1981 shall apply to such order.

The purpose of the amendment is to ensure that victims of sexual or violent offences are protected from revenge attack when the offender has completed his sentence. Too many victims are afraid to bring such matters to the attention of the gardaí and to give evidence in court. The offender is, in most cases, a family member, a power figure in the victim's life. The victim in the Kilkenny incest case, a person who has suffered dreadfully, is in fear of her life when her father is released from prison. She believes that both she and her mother will be subjected to further violence.

The objective of this amendment is to give the court discretion when sentencing the perpetrator of such vile offences to place a barring order on the convicted person, thus preventing contact with the victim in the future.

Mr. O'Dea

This matter will be examined and if feasible will be included in the next criminal justice legislation to be brought forward. I sympathise with the object of this amendment. Victims of sexual or physical abuse are often concerned that when the person convicted of the crime is released from prison he or she may look for revenge. They live in constant fear of this. If the convicted person assaults the victim or threatens to do so he can be charged with the appropriate offence. However, the offender's mere presence in the neighbourhood may be sufficient to intimidate a victim. This is particularly so when the perpetrator of the crime and the victim live in the same area.

When the offender is released from prison, the victim may encounter him every day and this can be stressful. The proposed amendment recommends that the court, when passing sentence, could in addition to any prison sentence impose the equivalent of a barring order. On the prisoner's release he would be barred from coming into contact with the victim in her place of employment or residence. If he breached the order he could be arrested immediately by the gardaí and charged with an offence. This proposal has some attractions and is worth exploring further. However, there are a number of practical problems which must be worked out.

Care must be taken to ensure that the person who has served his sentence and reformed is not subject to further constraints on his freedom. If a person is sentenced to seven years' imprisonment it would seem odd for the sentencing court to impose a barring order which would not come into effect until a time when circumstances may have changed. By the time the prisoner has been released he may pose no threat to the victim and the victim may no longer feel in jeopardy. How will the court know where the victim will be living in seven years' time? A blanket order would be unjust as the prisoner might, unwittingly, bump into the victim and thereby be liable to arrest. These are some of the points that will have to be considered before any definite decisions can be made.

Officials at the Department of Justice have been asked to examine this matter in detail and, if appropriate, suitable statutory provision will be introduced in the next criminal justice legislation to be introduced. I cannot justify delaying the passage of the Bill until this work has been completed and I am not accepting this amendment.

Ms Gallagher

I agree with the intention behind this amendment. Senator Neville wants an injunction or some other protection to be included in this legislation so that the victim will be protected from further interference by the offender. This is worth while and necessary, in many instances.

I do not agree with the wording of this amendment. This is not the area in which it should be included and it warrants further discussion. The High Court has this power under the Judicature Act, 1877, although it is limited.

The amendment imposes civil punishment in criminal proceedings. That is a serious matter. After the court has convicted and sentenced the offender, a civil punishment is imposed. This amendment is broadly phrased and wide-ranging but I wonder if it is practical? I agree with the Minister regarding what would happen when the offender is released.

I agree with the intent of this amendment but I have difficulty with the wording. It needs further consideration. This is not the time to include such a provision in our legislation and for that reason, I ask Senator Neville to withdraw the proposed amendment.

Mr. Kelleher

I understand the sentiments behind Senator Neville's amendment but it would be difficult to implement. If a person is sentenced to seven years, how will the court know where the victim will be living when the offender is released? If the victim was a member of the itinerant community, how would this provision be enforced? The Minister pointed out that if the perpetrator of the crime accidentally bumped into the victim he would be liable for prosecution. This amendment is not practicable and I hope it will not be pursued.

Mr. Neville

I am glad the Minister accepts the spirit of this amendment. However, he claims it would be unworkable. Too many people who are subjected to sexual and violent abuse are afraid to bring that information to the notice of the Garda. The law should be seen to protect them. If they are aware that they can be protected, indefinitely, from this violence they will be more inclined to come forward with information.

I cannot understand the problem in relation to where the victim resides. The barring order would apply wherever the victim resided or was employed. If circumstances change there is a facility to apply to have barring orders lifted. That would overcome such a problem.

The Minister has said he will bring this forward in the next piece of legislation. The experience of this House is that such promises are usually delayed. We must deal with sexual abuse and ensure that people feel fully protected when they come forward to give information to gardaí or give evidence in court.

Ms Honan

I support Senator Neville's amendment. This Criminal Justice Bill was initatied as a result of public outrage at the lenient sentences handed down by the courts. The victim in the Kilkenny incest case fears her father's release from prison. The desire to protect such victims lies behind this amendment.

We talked about our outrage and rushed through legislation because we felt it should be available if needed. I welcome the commitment of the Minister for Justice in her speech yesterday that this is one of an envisaged series of proposals for the criminal justice system. We are prepared to go so far, but we are not prepared to do all that we should. We rant and rave and then, when we have an opportunity to go as far as many of us feel is necessary, we do not take that course.

The public are of the opinion that we will rush legislation through when an outrage occurs but then we leave more to be done and it will be years before it is looked at again. I would fail the women of Ireland if I did not support this amendment.

Ms Kelly

I sympathise with what Senator Neville has attempted to do. He should perhaps have gone further. The amendment refers to the place where a person resides or is in employment, but that only takes into account a small part of a person's life. It does not include a place of entertainment where a person would regularly socialise and could be intimidated.

Mr. O'Toole

I can see the Government being defeated on this. That is four on the other side supporting us so far.

Mr. O'Dea

Will the Senator help us?

Ms Kelly

If such a blanket barring order were imposed a person who had served his sentence would have no safe place to go and that is a reversal of justice.

This amendment, if enacted, could be open abuses. It does not go far enough on the one hand but it is open to too many abuses on the other. The amendment should be redrawn so that the rights of both the convicted person and of the victim are more finely balanced.

Mrs. McGennis

I mentioned yesterday the type of situation Senator Neville is trying to anticipate with this amendment and I support its intention. I accept the Minister's assurance that it is her intention to introduce legislation in this regard and I would not like to see the legislation delayed because of this amendment. The amendment is well intentioned.

Mr. Neville

Accept the amendment and it will not be delayed. You have the opportunity.

Mrs. McGennis

I am afraid that the wording of the amendment is probably not correct and it does not achieve the objective I spoke about yesterday. I would be surprised if there were not some Members in the House who would consider the amendment unconstitutional and an infringement of civil liberties. In order to achieve the objective referred to by Members we must be sure that an amendment to legislation will be effective. This provision probably could not be implemented.

I wish to refer to the last two and a half lines of the amendment which state: "...from using or threatening to use violence against, molesting or putting in fear the person in respect of whom such offence was committed." I presume people who are exposed to that can immediately seek recourse under existing legislation. It does not require going through the court procedure all over again.

Subsection (5) refers specifically to victim impact. Is there not a provision that when the report on victim impact is given to the judge the prosecution would ask that what this amendment seeks to achieve would be imposed? The wording would not get us what we want.

Ms Gallagher

Although it is obvious that there is support for the intent of this amendment, it should be emphasised that it is imposing a civil punishment in criminal proceedings. It would not stand up in court and would be open to challenge. On that basis alone the wording of the amendment is impracticable. While the intention is worthy of full consideration at a later stage, I object to its being thrown in, in this fashion, at this point. On that basis I ask Senator Neville to withdraw the amendment.

Mr. Neville

I object to the amendment being referred to as "thrown in" at this time.

Mr. O'Toole

It is time we called a spade a spade. Listening to the debate it would appear that nobody in the House opposes the amendment. Far be it from me to tell the Minister how to conduct business, but if the Government agrees with the intention of an amendment but believes that the phrasing is incorrect there is a noble tradition that the Minister, on Report Stage, introduces an appropriate amendment to effect the required changes. That solves the problem.

The Government cannot have it everyway; it agrees with the amendment and supports it, or agrees with it but changes the wording and then supports it, or it votes against it. Even though I have not moved the amendment, I intend to call for a vote on it.

Mr. Kelleher

I oppose it.

Mr. O'Toole

Every gender matter seems to create problems in this House.

This is a clear, simple amendment. There are women who live in fear of persons who have been convicted of crimes against them. When a person serves a prison sentence it does not mean he or she automatically becomes innocent; that person is still guilty of the crime for which he or she was convicted. I freely concede that many valid points have been made by the Government side, but we must have a clear decision. Either we support the amendment or we do not.

Mr. Enright

In regard to the point made by Senator Gallagher that this amendment was "thrown in" by Senator Neville at the last minute——

Ms Gallagher

You misquote me.

Mr. Enright

They were words to that effect. This House has an opportunity to amend legislation. If the amendment is carried, the legislation returns to the Lower House to be approved.

On close examination of section 5 I believe that the amendment is essential. Section 5 states:

In determining the sentence to be imposed on a person for an offence to which this section applies, a court shall taken into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long term or otherwise) of the offence on the person in respect of whom the offence was committed.

I repeat the words: "any effect whether long term or otherwise". One effect the offence can have on the injured party is trauma and worry that the offender will return on release from prison and commit the offence again. That fear was evident in the victim of the Kilkenny incest case. The girl had her fingers smashed with a lump hammer; her ribs driven in with a steel bar and a leather strap with metal studs was used on her body. In that type of offence, no matter where the girl goes, there will be a genuine fear that this abuse may recur. Any person who commits that type of offence has an underlying mental problem. I cannot see how seven years in prison or any sort of treatment would change such an individual or how he could be rehabilitated. The only thing bullies fear is retribution and the only retribution society can impose at present is prison.

Under this section, a judge can commit a person to prison for between seven and 20 years. I see no difficulty in incorporating in the judge's order a stipulation that the person be prevented from going near or entering the residence or the place of employment of the victim.

In an article in The Irish Times last week it was said that some of this legislation is piecemeal. There has been too much piecemeal legislation in codifying our criminal law procedures. In this instance I accept the goodwill of Members on the other side of the House and I think they would be anxious to see if Senator Neville's amendment could be changed and perhaps improved. I would be happy if that could be done. If somebody wishes to propose an amendment we will certainly consider it. The Bill has gone through this House in a great spirit of goodwill on all sides and we are anxious to ensure it would incorporate the spirit of what Senator Neville has in mind.

Ms Honan

Senator Kelly was concerned that we were talking about a person who was innocent. We are talking about this section being applied to somebody on conviction. They would be sentence to a period in prison and the barring order would come into effect after their release. This could be decided in court when the case is being heard.

The Minister said yesterday that this Bill was victim-oriented. We all agree that for too long the victim was the last person to get priority. I think this amendment is victim-oriented. Senators on the other side of the House have talked about imposing on the civil liberties of the defendant. Again, we all said that for too long it seemed the only person we were concerned about was the defendant. The victims in these cases felt they had been forgotten. I thought this Bill was to help victims. This section would be of great benefit to victims. As Senator O'Toole said, if the Government have a problem with this they can come back on Report Stage and have it changed to something they believe is workable.

I support the amendment. It is hypocritical to say you support various measures, as was said on Second Stage, and then vote against this amendment.

Mr. O'Dea

Like Senator Gallagher, I dislike the idea of mixing civil and criminal law. There are no precedents for it and I think it will inevitably get us into trouble, although when we consider this situation, we may have to do that to some extent.

Basically, the amendment proposes to allow a judge discretion to decide now what a person's conduct will be in seven, ten or 12 years. There have to be logical objections to that. The present barring order legislation, barring a person from his home, is a serious sanction. Let nobody doubt that, even though it comes from civil law. A barring order is based on a person's conduct at the time. If a person is violent or showing violent tendencies and his wife takes him to the District Court. The court will look at his conduct in the immediate past and decide that person should be put out of the house. This amendment would give judges the right to decide what this person's conduct is likely to be in seven or ten years' time. Barring a person from his house in seven or ten years' time is a considerable sanction. Instinctively I dislike that.

This amendment is proposing a new form of criminal sentence, that is the mixing of the civil and criminal law. In addition to allowing a judge to impose the usual type of sentence by way of fine, community service order or prison sentence, this would allow a judge with criminal jurisdiction to apply another sentence, namely, a future barring order which will come into effect when the person leaves prison.

The Law Reform Commission produced a very detailed consultation paper on sentencing this morning. One definitive proposal made was that there be no new form of sentencing introduced, particularly a form of sanction which has its origin in the civil law. The father of the unfortunate victim in the Kilkenny case is now in prison and she fears for her life and her safety when he comes out. It is said that if we do not change the law on the lines suggested in this amendment, such people will remain fearful even while their relatives are in prison. It is also said that if we do not accept this amendment, that fear will be dissipated. That is not reality.

If a person comes out of prison, such as the father in the Kilkenny case, and he wants to perpetrate violence against the victim or take his revenge, a change in the law to apply an extra sanction, apart from this criminal sanction there already, is not going to stop him. Take, for example, the person convicted in the Kilkenny case. He is now languishing in prison and if, as he lies in his bunk, he is plotting some terrible revenge on his unfortunate daughter when he comes out, is he going to say that if he carries out this revenge he will probably be sent back to prison for the rest of his days? If we accept this amendment he is going to say tomorrow night that he can now be barred from the house, that the judge can issue a barring order against him and that he is going to stop me, therefore I cannot do it anymore? If a person breaks a barring order they can be arrested without warrant. If a person breaks the criminal law they can be arrested, tried and put in prison. An extra sanction is not going to stop him.

Senator O'Toole said that if Government Senators find something wrong in the wording, they should change it and accept it on Report Stage. I prefer to simplify things but there is no point in reducing something to the simplistic, and that is what is being done here. It is not a question of difficulty with the wording, but of a number of logistical difficulties which I will mention.

We have to decide on our approach to this amendment. The suggestion was first made by Deputy Shatter in a Dáil amendment. It would represent a fundamental change in our legal system. We have had a fortnight to consider it, but I am afraid it will require more time. Drawing from my experience, there are many ways in which we could tackle it. One would be to introduce a modified form of this proposal, even though it would involve mixing civil and criminal law. Some provision will have to be written in to the effect that it can be applied only in very exceptional cases. Maybe we would have to specify the circumstances. It would impose a sanction at some time in the future. We will have to lay out the parameters within which that sanction can be applied if we are to follow this route.

An alternative would be to extend the barring order legislation of 1981, to allow a victim or a potential victim to apply for a barring order just before the person is released from prison. The decision would be based on his likely conduct at the time the barring order is applied for. If we take that approach, we have a number of logistical problems. What should the procedure be in telling the victim when the person is coming out of prison? What kind of notice should be given to the court?

Another possible approach I suggested in the Dáil debate is to create a separate offence of molestation or annoying of the victim. Senator McGennis asked if a person who is molested in a public place can have immediate recourse to the law. The answer is no. As the law stands, it will have to be reported to the gardaí, who will decide whether an assault has taken place. This difficulty should be overcome if we had a separate offence of molesting the victim.

One can support the spirit of reforming legislation but we have to find the most logical and practical way of framing it. We also have to overcome the many difficulties I can foresee. I hope Senators will accept my word that I am committed to doing something in this area. I am not convinced from what I have heard so far that this amendment as drafted, is necessarily the best way of dealing with this difficult and delicate problem.

Mr. Neville

We are putting this amendment forward sincerely and we believe in the contents and the wording. We did not just throw it in. It is a genuine effort by the Opposition to improve the legislation. In the previous Seanad, Fine Gael, the Labour Party and the Independents successfully amended legislation. It is the role of the Opposition to try to improve legislation. The suggestion that we just throw in amendments is disingenuous, to say the least. We are sincere about this and I would like to allay Senator Kelly's problems in this regard.

It is not practicable to have a barring order blocking a person from anywhere because the two individuals concerned could meet in any social setting by accident. It would apply to the home and the place of employment and prevent the offender from using, or theatening to use any violence against, molesting or scaring the person in respect of whom the offence was committed. This covers areas outside of their employment and home. I commend the amendment to the House.

Mr. Enright

Senator Neville's point is correct. The amendment is specifically worded. If there are cases similar to the Kilkenny case still occurring——

Mr. Neville

Of course there are.

Mr. Enright

——the threat of imprisonment is the best deterrent. They would know that after committing an offence, they could be prevented in law from entering their home for up to 20 years after release from prison. These offences are of such magnitude that it is mind-boggling. In rural Ireland, if this was done to an animal, local people would take their own measures against the perpetrator. In the past, people would not tolerate cruelty to any sort of life. We in these Houses have the power to change the law and we should use it. If a person is sentenced to seven years' imprisonment and is then able to return to the home, the family members could be put in jeopardy. We should try to ensure that this does not happen.

Mr. O'Dea

I fully agree with what Senator Enright said. The amendment was put down in the Dáil by the Fine Gael spokesman on justice, Deputy Shatter, on Committee Stage. I have already said to Deputy Shatter that I want to thank him, Senator Neville, and the Fine Gael Party for bringing this matter to our attention. I accept the principle of what Senator Neville is saying and we will have to do something about it. It is a matter of finding the best way. We will have the opportunity in the programme of reform of the criminal law.

Amendment put.

The Committee divided: Tá, 13; Níl, 25.

Tá

• Belton, Louis J.
• Burke, Paddy.
• Cregan, Denis (Dino).
• D'Arcy, Michael.
• Doyle, Joe.
• Enright, Thomas W.
• Farrelly, John V.
• Honan, Cathy.
• Howard, Michael.
• Manning, Maurice.
• Neville, Daniel.
• O'Toole, Joe.
• Taylor-Quinn, Madeleine.

Níl

• Bohan, Eddie.
• Calnan, Michael.
• Cashin, Bill.
• Cassidy, Donie.
• Crowley, Brian.
• Daly, Brendan.
• Fahey, Frank.
• Fitzgerald, Tom.
• Gallagher, Ann.
• Kelleher, Billy.
• Kelly, Mary.
• Kiely, Rory.
• Lanigan, Mick.
• Lydon, Don.
• McGennis, Marian.
• Mooney, Paschal.
• Mullooly, Brian.
• O'Brien, Francis.
• O'Kennedy, Michael.
• O'Sullivan, Jan.
• Ormonde, Ann.
• Roche, Dick.
• Townsend, Jim.
• Wall, Jack.
• Wright, G.V.

Tellers: Tá, Senators Enright and Neville; Níl, Senators Calnan and Mullooly.

Amendment declared lost.

Mr. O'Toole

I move amendment No. 3:

In page 3, lines 31 and 32, to delete subsection (3) and substitute the following:

"(3) This Act may apply to sentences imposed on persons convicted since 1st January, 1993.".

During the course of discussion on the Kilkenny case last month people wanted to know why the State could not reflect their wishes and appeal against the sentence. The reason was that the legislation had been put on hold during the election process and, unfortunately, the Government decided that the Dáil would not sit during January. Consequently, this legislation did not come before the Dáil until a later date. It is now before this House, but it is too late to apply to that case. We should change this legislation so that the State can deal effectively with cases such as the Kilkenny case, or others which might arise.

This amendment states that this legislation may apply to persons convicted since 1 January, 1993. I recognise that another section of the Bill requires that an application be made within 28 days from the day on which the sentence is imposed. We should change the legislation so that it will apply from the current year. The amendment reflects what everybody said was necessary when we were discussing it a month ago. It is a simple amendment which does not create any conflict or difficulty and I hope the Minister will be pleased to accept it.

Mr. Roche

I understand the motivation behind the amendment. However, I am stunned at Senator O'Toole's suggestion that it is simple. It is unconstitutional.

Mr. O'Toole

There is nothing unconstitutional about it.

Mr. Roche

It is unconstitutional. I suggest that Senator O'Toole should look at Bunreacht na hÉireann. His amendment would render this Bill unconstitutional by purporting to create retrospectively a criminal act. I am not saying I do not have sympathy with the Senator's intention.

Mr. O'Toole

I have been advised on the constitutionality of that point. The courts decide what is criminal. This amendment refers to sentencing and the appeals procedure.

Mr. Roche

The reality is that although this amendment may be laudable in its sentiments, it is unconstitutional and would do fundamental damage to the Bill. It cannot be supported.

Ms Gallagher

I agree with Senator Roche on this point. Senator O'Toole is seeking to apply a law retrospectively. There are constitutional constraints which would jeopardise the Bill. A convicted person has the right to know that procedures are in place and are not open to question. While I sympathise with the reason for its introduction, namely, to deal with cases like the Kilkenny case, I believe it cannot be implemented because it applies retrospectively and would be unconstitutional.

Mr. O'Dea

Senator Roche suggested that Senator O'Toole should consult Bunreacht na hÉireann. If one wants to check the constitutional position one should also look at case law.

Mr. Neville

I agree with that. It is a good suggestion.

Mr. O'Dea

One would have to look at the case law and the Fundamental Rights Articles in the Constitution. A good reference book is Fundamental Rights in the Irish Law and Constitution by the late John M. Kelly. When Senator O'Toole indicated his intention yesterday on Second Stage to table this amendment, the Government sought advice from the Attorney General, who advises the Government on the constitutionality of legislation. He advised that it is almost certainly unconstitutional.

Article 15.5 of the Constitution provides that "the Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission". While this amendment does not conflict directly with that provision in the Constitution, it does conflict with the generally accepted legal principle that penal legislation should not apply retrospectively. The effect of the amendment would be unfair. It would cause injustice and would be open to the challenge that it is in conflict with the rights of the accused as provided for in other Articles of the Constitution.

Legislation must not conflict with the exact provisions of the Fundamental Rights Articles of the Constitution. There is a large body of natural rights derived from the interpretation of the courts of the Fundamental Rights Articles 40 to 44. Looking at case law and the rights that have been developed, the Attorney General feels, as I do, that we would be in severe constitutional difficulties if we were to accept this proposal.

Such a right, which caused much controversy in practice, arose from the case of the People v. O'Callaghan, in 1966 where the Supreme Court decided that a person would have to be granted bail in certain circumstances. The entitlement to bail was based on a natural right which the Supreme Court deduced O'Callaghan had from Articles 40 to 44, even though the specific point is not dealt with in the Constitution. The Constitution cannot cover every situation.

Another example of how this amendment would operate relates to a person convicted on, say, 2 January and sentenced to two months' imprisonment. If this amendment were accepted, the DPP could bring that person back before the courts on the basis that the sentence was inadequate, even though it would have been completed. I do not think that would be fair, right or constitutional.

Mr. Neville

Under this Bill, would it not have to be appealed as a lenient sentence?

Mr. Roche

The Minister said it could be done this way.

Mr. O'Dea

Although the person would have served his sentence, the DPP could bring him back before the court seeking a sentence. That would be unfair and unconstitutional. It conflicts directly with natural justice and the civil rights of citizens which have been deduced from the interpretation by the Supreme Court of Articles 40 to 44 of the Constitution. Criminal law legislation must be made victim-oriented and although we were all shocked and horrified by high profile cases, like the two Kilkenny cases, we must maintain a certain balance. We cannot trample on civil liberties or constitutional rights in our efforts to redress the balance, in other words, we cannot go too far in the other direction. Our advice is that that would be unconstitutional and I cannot take the responsibility of having legislation passed which would, ultimately, be found to be unconstitutional, particularly when I have been clearly advised that would be the case.

Mr. O'Toole

I want to refute some of the arguments that have been made on this issue. For the Minister to use the words "almost certainly" is as useful as saying "completely empty". There is no such thing as "almost certainly". The Minister began by saying "almost certainly" and ended by saying it was unconstitutional. It is my view, on advice I have taken that it may be challenged. Under the Constitution legislation may be challenged. If the Attorney General's advice was that the amendment is unconstitutional, the Minister would have stated this in his first sentence, but he did not do so. He said and I quote, "almost certainly" and "it may be in conflict". I know it may be in conflict. It cost me £3 million in a village in west Cork to find out that the words in the Constitution and the operation of the law do not have to match precisely. So I am very well aware of the difficulties that can arise.

I can cite examples of retrospective legislation which have been approved in this House. A few months ago the Minister introduced retrospective legislation to copperfasten the legality of sentences passed by a member of the Judiciary who was incorrectly appointed. Section 9 of the Companies Act, was enacted as separate legislation to deal with the Goodman case in retrospect. The purpose of last years Pensions Act was to deal in retrospect with the problem of orders which had not been made by Ministers.

In relation to this Bill the Minister spoke of somebody having to be dragged through the courts after having served their sentence. I would advise him to read the Bill again. The Bill says that a review of sentences should take place within 28 days of the sentence being imposed by the court. It is possible that someone could be on remand for nine months, receive a sentence of ten months or a year, be given remission and not have to serve any time and within 28 days — in the Minister's words — they would have to be dragged through the court all over again. Let us call a spade a spade. These things happen. There is a case in front of the Minister and a proposal to deal with it. As in the case of the last amendment, the Minister may oppose it for specific reasons but it is not in contravention of natural justice. If there is any principle or rule of natural justice or a point of common law to which the Minister is referring, let us hear what it is.

The Minister referred to the Article of the Constitution under which, I freely concede, it could well be challenged, just as any legislation passed in this House might be challenged under an appropriate part of the Constitution. That is the purpose of the Constitution. This amendment is not unconstitutional. It may be tested in the Supreme Court, or it would be open to the President to refer it to the Supreme Court for decision as to whether it is constitutional. This is a valid amendment, it allows the will of the people to be reflected in legislation and I commend it to the House. I ask the Minister to support it.

Mr. O'Dea

When I talk about people being dragged through the courts again, I am talking about a person who has already served a custodial sentence.

Mr. O'Toole

That is what I am talking about.

Mr. O'Dea

I do not know what the Senator's problem is.

Mr. O'Toole

On a point of information, I am talking about somebody who may be held on remand for, say, six or seven months and is given a sentence of, say six months. If the State considers the sentence to be too lenient, the State has 28 days to appeal it. However, the sentence may be completed and the person released because the time on remand will be taken into consideration. If the sentence is reviewed, the whole procedure will have to be gone through again.

Mr. O'Dea

There is a difference which the Senator might not accept but which I can see. None of the examples of retrospective legislation the Senator mentioned, such as the Companies Bill and the appointment of a judge, dealt with criminal legislation; it is unconstitutional to pass retrospective criminal legislation. The Senator quoted me as saying that the amendment was "almost certainly" unconstitutional. I used the word "almost" because nothing is certain in law, nothing is unconstitutional until the Supreme Court says it is. Law is not an exact science.

I want to clarify for the House the advice I have received from the Attorney General is that the Supreme Court would strike this down as being unconstitutional, if it were challenged, whether you use the words "almost certainly", "certainly" or whatever.

Question put: "That the words proposed to be deleted stand."

The Committee divided: Tá, 23; Níl, 14.

Tá

• Bohan, Eddie.
• Calnan, Michael.
• Cashin, Bill.
• Cassidy, Donie.
• Crowley, Brian.
• Daly, Brendan.
• Fahey, Frank.
• Fitzgerald, Tom.
• Gallagher, Ann.
• Kelleher, Billy.
• Kelly, Mary.
• Kiely, Rory.
• Lydon, Don.
• McGennis, Marian.
• Mooney, Paschal.
• Mullooly, Brian.
• O'Brien, Francis.
• O'Kennedy, Michael.
• O'Sullivan, Jan.
• Ormonde, Ann.
• Roche, Dick.
• Wall, Jack.
• Wright, G.V.

Níl

• Belton, Louis J.
• Burke, Paddy.
• Cregan, Denis (Dino).
• D'Arcy, Michael.
• Howard, Michael.
• Manning, Maurice.
• Neville, Daniel.
• Doyle, Joe.
• Farrelly, John V.
• Henry, Mary.
• Honan, Cathy.
• O'Toole, Joe.
• Reynolds, Gerry.
• Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Calnan and Mullooly; Níl, Senators Neville and O'Toole.

Amendment declared lost.

Question delcared carried.

Section 1 agreed to.

NEW SECTION.

Ms Honan

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.".

When a verdict has been given in a case it is normal for a defence counsel to address the judge as to what sentence he or she feels should be imposed or whether some mitigating circumstances should be taken into account. It is usual practice for people to give references in the case of the defendant. There is no provision for the DPP, for counsel for the DPP or for counsel for the victim to address the court before sentence is imposed. It was said yesterday that the purpose of this Bill is to allow an appeal by the DPP if it was felt that the sentence was too lenient. This amendment should be accepted because it would allow the judge to hear from the DPP what sentence he or she felt should be imposed. It would give the judge an indication if certain circumstances should be taken into account or that if a short sentence was imposed there was the likelihood that it would be appealed. It would reduce the number of appeals under this Bill. For that reason I propose the amendment.

Ms Gallagher

I have two problems with this amendment. First, it would give the prosecution yet another chance to present their case before the court. They already have had the opportunity to do so and the judge would have given a verdict of guilty or not guilty at this stage. It is supposed to relate to the severity of the sentence only. Acceptance of the amendment would give the prosecution a second bite of the cherry to which they are not entitled. I object to it on that account.

Secondly and more importantly, the code of conduct of the Bar allows for counsel for the prosecution to address the court in this fashion; it is simply a matter of practice or procedure that the Bar does not do so at the moment. It would merely be a matter for the Bar Council to revise their rules in light of this legislation if they felt it was necessary. In other words, this right already exists in law. The Bar has simply decided not to practice it. It is a rule of code and a change of code is all that is required to provide what Senator Honan seeks to introduce in this area. Therefore, the amendment is unnecessary; it is already lawful and it is simply a matter for the Bar Council to rectify.

Ms Honan

Senator Gallagher said that this amendment would give the prosecution a second bite of the cherry. Does she not accept that there is a provision that the defence counsel can address the judge? Are they not getting a second bite of the cherry? Surely what is acceptable for one side should be acceptable for the other. I understand that plea bargaining already takes place. The judge is aware that this happens in many cases and this might be the reason some sentences appear lenient. It was said earlier that one might not be aware of all the facts of a case and that having gone through a case the judge would be aware that in certain cases plea bargaining had taken place. It was suggested that this is the reason some lenient sentences are given. If the prosecution or counsel for the DPP were allowed to address the court, all of this would come out into the open and our system of justice would be transparent. One of the problems in this country is that the public is not aware of certain procedures that take place and, as a result, reacts in a certain way. If defence counsel is permitted to do this I cannot understand why the prosecution cannot adopt the same course.

Mr. Neville

Senator Gallagher has stated that to accept this amendment would present the prosecution with a second bite of the cherry. She then said that it is legal to do so and that it is merely a matter of practice in the Bar that this course is not taken. My amendment provides that a representative of the victim should have an opportunity to give the other side of the case when submissions are made for lenient sentencing. I have no problem with challenging the code of conduct of the Bar on this issue; as, indeed, the Minister does not have any problem with wigs and gowns being worn by members of the Bar. I was glad to hear him say yesterday that he will look at that matter again. In fact, the Bar has a dress committee organised to examine this.

Mr. O'Dea

There is a difference between the code of practice here and the dress code. I accept that at present it is not general practice for prosecuting counsel to address the judge on the question of sentencing. However, there is no rule of law against it. The advice I have received from the Attorney General is that there is certainly no constitutional objection to it. At this stage, therefore, there is no need to write it into law if it is the law already. As Senator Gallagher said, it is the code of practice of the Bar not to avail of this. To my knowledge it has been availed of in one or two exceptional cases but, generally speaking, is not and probably there are good reasons for that.

I consider the most prudent course of action is to see how the matter evolves in practice once the Bill comes into force. It may transpire in the light of the provisions of this Bill that the courts themselves will address the matter and issue general guidelines as to when it would be helpful for the prosecuting counsel to intervene on the question of sentencing, or in particular cases the judge might ask the prosecuting counsel to give his or her views on the issue of sentencing.

It should also be borne in mind that any need for an input by the prosecuting counsel would be reduced by two of the provisions in this Bill. First, the sentencing judge will now have to take into account the effect the offences had on the victim. This will undoubtedly influence the judge's decision on the sentence to be imposed and balance any plea for mitigation made by defence counsel. Secondly, the sentencing judge will be aware that the DPP may appeal any sentence imposed and he or she will have to take that into account when passing sentence. Anybody with experience of the courts knows that judges do not like being overruled by a higher court. These two measures will act as a counterweight to any intervention by the defence on the question of sentencing. In practice it may happen that there will be no need to involve the prosecuting counsel.

May I say to Senator Neville that when this Bill becomes law, the victim or any representative the victim wishes to bring in will be able to make representations and will be able to address the court directly on the question of sentencing in view of the effect of the crime on the victim.

I am also conscious that the Law Reform Commission today published a consultation paper on sentencing policy. Their final recommendation could have a major impact on the role of the prosecuting counsel in sentencing policy and I prefer to await their final recommendation before addressing this issue. I make the point that it is regrettable, through no fault of our own, that we did not have this very detailed consultation paper on sentencing policy before we introduced this legislation as it was published only this morning. I quote for Senator Honan's benefit from page 380 of the Law Reform Commission's consultation paper on sentencing:

We provisionally recommend that prosecution counsel be permitted at the sentencing stage to make submissions to the court not just on the facts of the case, but also on relevant legal principles and precedents. We do not recommend that he or she make specific submissions on the appropriateness of a particular sentence.

In the light of that and of other provisions in the Bill, I prefer to leave this issue for the moment.

Amendment, by leave, withdrawn.

SECTION 2.

Mr. Neville

I move amendment No. 5:

In page 4, subsection (2), line 14, to delete "28" and substitute "60".

I have been advised that 28 days would not be sufficient in all cases to bring forward a claim under the Bill for increasing lenient sentences. I would like the Minister to comment on that.

Ms Gallagher

In relation to the proposed amendment, 28 days is sufficient to allow certainty of the law on the one hand and justice for the convicted person on the other hand. Twenty eight days is sufficient time for the paperwork to go through in order to allow the DPP time to decide as to whether the sentence should be reviewed. At the same time, it gives the convicted person certainty as to their sentence and that is only fair. There is another point to be made in relation to this. The period of 28 days is in line with the general right to appeal in all criminal cases. I believe there is no reason in this legislation to introduce a 60 days right where 28 days is the norm. On that basis I ask Senator Neville to withdraw the amendment.

Mr. O'Dea

The 28 day period corresponds with the period in the British legislation. I refer Senator Neville to paragraph 1 of Schedule 3 of the UK Criminal Justice Act, 1988. That does not necessarily make it right and I take the point the Senator is making. We felt that any shorter period would not be adequate to enable all the necessary facts to be gathered. On the other hand, we felt that any significantly longer period would potentially be unfair to the accused. It is a difficult question of balance. There are many situations, and they arise every day, where somebody gets a suspended sentence or somebody receives a non-custodial sentence. We do not want these people waiting indefinitely to see whether they are going to draw a custodial sentence or the DPP is going to bring them before a higher court with a view to giving them a custodial sentence.

I think the Senator's main problem is that the DPP might not be able to operate effectively within the 28 day period. We were aware of this and it is the real question at issue. The Senator will be pleased to hear that we spoke to the DPP and consulted him extensively on this; we also consulted the Attorney General's Office. The DPP has assured us that he will be able to operate these provisions effectively within the 28 day period laid down.

Amendment, by leave, withdrawn.

Section 2 agreed to.

Sections 3 and 4 agreed to.

SECTION 5.

An Cathaoirleach

Amendment No. 6 is ruled out of order as it is a charge upon the revenue.

Amendment No. 6 not moved.

Section 5 agreed to.

NEW SECTIONS.

Amendment No. 7 not moved.

Ms Honan

I move amendment No. 8:

In page 5, before section 6, to insert the following new section:

"In any trial on indictment before any jury no reference shall be made in the course of such trial to the power of the court to award compensation under the provisions of this Act.".

This Bill allows compensation to be paid to a victim. In a rape trial if the jury knows compensation is offered by defence councel, this might influence its decision whether to find the defendant guilty. I believe no reference should be made to the fact that compensation is going to be paid, is being offered or is being considered, until after a verdict has been given.

Mr. O'Dea

I see what Senator Honan is trying to achieve. First, the jury will probably know that compensation can be awarded because it will be public knowledge. Second, in relation to the question of compensation arising during the trial, that will not happen. The function of the trial, and of the jury, is to determine whether the accused is guilty or innocent. The question of whether compensation can be given if the accused is going to be guilty will be irrelevant, and therefore totally inadmissible in evidence. The only evidence admissible will be the evidence for the prosecution and the evidence for the defence. The issue of compensation will not arise. While I understand the Senator's fears, I think they are unfounded.

Ms Honan

I thank the Minister. I understand the Minister's point regarding inadmissibility and that a jury would be aware beforehand that compensation could be awarded. However, there are trials where the defence does not plead guilty but they realise the distress that has been caused to the victim and without admitting guilt, they may say they are willing to compensate the victim to a certain extent. Does the Minister not believe that this can affect the jury whose sympathy may then move from the victim to the person who offered the compensation?

Dr. Henry

I support what Senator Honan has said. Not only is it unfair to the victim that the jury might be influenced by compensation being paid to the victim, but it is also unfair to the accused. An accused who has money will be in a stronger position than an accused who is poor and cannot offer compensation. Senator Honan has raised an important point here.

Mr. O'Dea

The amendment relates to the power we are giving the court to order compensation. Putting into legislation the requirement that no reference shall be made to that power during the course of the trial will not serve any purpose for two reasons. First, it is public knowledge that the court now has power to give compensation. Not to refer to what is public knowledge does not make a great deal of sense in practice. Second, it will not arise during the trial. The trial will determine the guilt or innocence of the accused. Why would the accused offer to pay compensation if he is pleading not guilty?

Amendment, by leave, withdrawn.

SECTION 6.

An Cathaoirleach

Amendments Nos. 9 and 10 are cognate and amendment No. 11 is related and all may be discussed together.

Mr. Neville

I move amendment No. 9:

In page 6, subsection (5) (a), line 34, to delete "means" and substitute "financial circumstances and capital assets".

I suggest the word "means" is woolly; the phrase "financial circumstances and capital assets" would give greater clarity. "Financial circumstances" would mean money in a financial institution etc., "capital assets" would mean any assets a person had, be it a business, a farm etc. I consider the word "means" to cover income. One can have many assets without any income. For example, a wealthy person could have substantial assets but very little income from them. Would that person be asked to liquidate some of his assets to compensate the victim?

Ms Gallagher

From my knowledge of the law, the definition of "means" is used in a standard way in legislation. It is nitpicking to decide in this legislation to change a definition commonly referred to and commonly understood, namely "financial circumstances and capital assets". That is confusing and unhelpful. The courts already have ample power to inquire into the assets of a person before them. I do not believe the necessity to put an affidavit before the court regarding financial circumstances is necessary in this case and it does not require legislation. The court can direct themselves as to what is necessary. A person before a court can be asked any questions regarding his assets and financial circumstances. All kinds of information can be disclosed in an affidavit. I have seen information given to courts with regard to maintenance orders etc. I do not believe that this measure will prevent that happening. Apart from that, there is a certain privilege against self-incrimination and people should not be obliged to disclose all their information to the court. For those reasons I ask Senator Neville to withdraw his amendment.

Mr. O'Dea

I am advised that the word "means" appears eight times in section 6 of the Bill whereas the new term proposed by Senator Neville to replace it would apply in two places only.

I understand the Senator's wish to have the word "means" replaced by the words "financial circumstances and capital assets" so as to leave no room for doubt if capital assets are taken into account. On Report Stage in the Dáil I undertook to examine the adequacy of the word in this context and, having examined the matter in full, I am now satisfied that the word "means" does include capital assets. That is the ordinary, literal meaning of the word. It has been used in numerous statutes over the years and, to the best of my knowledge, has never given rise to difficulty in practice.

If it will allay the Senator's fears further, I will refer to the Criminal Justice (Legal Aid) Act, 1962 where the term appears. One of the criteria for the grant of a free legal aid certificate is that the means of the person are insufficient to enable him to obtain legal aid. By section 9 of the Act the applicant may be required to furnish a written statement regarding his means. The Second Schedule to the Criminal Justice (Legal Aid) Regulations, 1965 provides the form of the statement of means of an applicant for free legal aid where a written statement is required. That form, in addition to requiring information about the applicant's financial commitments for example, rent mortgages, dependent relatives etc., also inquires whether the applicant has capital assets in the form of a house or any other assets.

There is no great difference between the context in which the term "means" is used in this Bill and the context in which it was used in the Criminal Justice (Legal Aid) Act, 1962. There is no need to change the term because, having taken advice on the matter and having looked at previous legislation and how it has been interpreted, we are convinced beyond a shadow of doubt that the term includes capital assets and not just income.

Mr. Neville

Is the Minister happy that the defendant will reveal information on all his assets and his income to the court? Under present procedures how can the means and capital assets of a person be ascertained?

Mr. O'Dea

On Report Stage in the Dáil I inserted an amendment in section 6 (5) so as to make it clear that when assessing a person's means for the purpose of determining the amount of a compensation order for that purpose the court could require the convicted person, or his parent or guardian as the case may be, to give evidence as to his means and financial commitments. I added the words "financial commitments" to ensure that in case there was any doubt — which we do not think there is — the liability side of the balance sheet as well as the assets would be taken into account. That amendment adequately meets the point raised by the Senator's amendment.

The amendment I made in the Dáil is in slightly different terms to Senator Neville's amendment, but the only change of any substance is that the disclosure need not be made in all cases by affidavit. We feel there are some cases where that procedure would be unduly bureaucratic and might delay proceedings. We are giving the judge the discretion to have the defendant produce evidence of means by whatever way the judge wishes. We are giving total discretion to the judge. If the judge feels that an affidavit is absolutely necessary he will so order; if he thinks that a less bureaucratic way will achieve the same result he can act accordingly.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 not moved.

Section 6 agreed to.

Sections 7 to 14, inclusive, agreed to.

Title agreed to.

An Cathaoirleach

It has come to my notice that in the printing of the Bill the words of the Family Law (Maintenance of Spouses and Children) Act, 1976, on page 8, section 7, paragraph (c), lines 32 and 33 should be moved down and out to the left of the margin as they apply to paragraphs (a), (b) and (c). I propose to direct the Clerk Assistant to make the necessary correction.

Bill reported without amendment, received for final consideration and passed.

An Cathaoirleach

When is it proposed to sit again?

Mr. Mooney

It is proposed to sit at 2.30 p.m. on Tuesday, 30 March.