Seanad Éireann debate -
Wednesday, 27 Jul 2011

Vol. 209 No. 14

Criminal Justice (Community Service) (Amendment) (No. 2) Bill 2011: Committee and Remaining Stages

Sections 1 and 2 agreed to.

SECTION 3

Senator David Cullinane

I move amendment No. 1:

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

"(c) Where a court, by or before which an offender stands convicted, is of the opinion that the appropriate sentence in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment of more than 1 year and where a court decides not to make a community service order in relation to said offender, then a court shall provide a written reason to explain the reason for not making a community service order.”,”.

I welcome the Minister for Justice and Equality. He will know from yesterday's contribution that I support the substance of the Bill and I commended him and the Government on bringing it forward. However, I have tabled a couple of amendments, which will be helpful. If the Minister is not able to accept them today, he will certainly accept the thrust of the arguments we make in both cases and I hope he will take the points on board.

One of the reasons I tabled amendment No. 1 is that the purpose of this Bill is to make it easier for judges to consider imposing community service orders over custodial sentences. We all accept the logic of that in certain circumstances. In my experience, the court system and judges take the letter of the law very seriously, which is only right. However, jurisprudence occasionally throws up examples of judges creating formulas and four and five point rules. There are examples, such as the M'Naghten rules and so on, where formulas and tests of this kind can help to shape judges' thinking. Likewise, we see this with the requirement for mandatory and discretionary warnings for witnesses and what shape those warnings can take.

In this instance, it is not unreasonable to request the judge to give a written reason and state his or her decision in a very plain way as to why a community service order was not used. That would not be a major imposition on a judge and it would give him or her an opportunity in a rational and clear way to set out the reason he or she was not in a position to use the community service order and opted for a custodial sentence or some other form of justice.

Judges are often required to issue judgments, so this would not add to their workload in a significant way. It would add clarity and certainty to the laws surrounding community service orders and it would give shape to when and where they should be applied. A number of people outside the House, who have concerns, contacted me. Many of the arguments we hear about the judicial system is that judges can interpret laws in different ways. It should be very clear in this case and there should be clarity around when a judge should use a community service order. If a judge was not to use a community service order, he or she should provide a written statement as to the reason he or she did not do so. That would be of assistance to everyone, including the Minister and his Department. It would certainly be of help in shaping decisions which may have to be taken to strengthen this in the future, particularly as we are hopefully going to move towards an approach of using community restorative justice to deal with certain crimes committed in the State.

On Second Stage the Minister referred to the pilot projects which have been rolled out and which were supported by my party. The joint policing committee in Waterford requested that similar projects be rolled out there. Representatives from an advocacy organisation attended a meeting of the joint policing committee in order to discuss issues such as community service orders and community restorative justice. They made the argument that consistency is the most important aspect of this matter. In the context of cases where the Minister or others might be of the view that an order could be brought into play, judges should be obliged to indicate why such orders are not handed down. It would be of assistance if everyone involved could understand from where judges are coming in respect of this matter. As a result of the fact that there would be no cost to the State and because there would be no real imposition on judges, it is reasonable to ask the Minister to accept the amendment. If he is not in a position to accept it now, perhaps he might indicate that he will give consideration to the intention behind it.

Minister for Justice and Equality (Deputy Alan Shatter)

As on Second Stage, I wish to thank the Senator and his colleagues in the House for their support for the Bill. It is important that when they make decisions, members of the Judiciary at all levels should provide their reasoning in respect of those decisions. At present, however, there is no requirement to the effect that written judgments should always be provided.

I appreciate that the proposed amendment is well intended. I believe the Senator shares my objective that community service orders be used, in the context of the provisions of the Bill, as frequently as possible and that people should not be sent to prison for very short periods at great cost to taxpayers, particularly when the latter would benefit to a much greater degree from those individuals carrying out community service in their localities and making restitution in respect of the crimes they have committed. Community service might also provide convicted offenders with an insight regarding other possible uses to which they might put their time. I am optimistic that this might result in fewer people reoffending in future. A range of benefits can accrue from using community service orders.

It is important that members of the Judiciary should apply the law as it will stand when this Bill is enacted. I do not doubt that they will do so. Having said that, I do not propose to accept the amendment for the following reasons. Under existing community service legislation, when considering imposing a sentence of imprisonment, regardless of the length thereof, a court may, as an alternative, impose an order of community service. The latter can be prescribed not only in circumstances where a sentence may be for one year or less but also in other circumstances.

Section 3(a) reflects the primary purpose of the Bill and involves the insertion of a new section 3(1) into the principal Act. This new subsection requires a court to consider making a community service order where a sentence of imprisonment of up to 12 months is contemplated. In essence, a judge who, in determining sentence, has concluded that a custodial sentence of up to 12 months is appropriate will, on foot of this Bill, be required to consider imposing the alternative sanction of community service. However, in respect of sentences of greater than 12 months, the Bill will make no change. In such cases, a court may impose the alternative sanction of community service. However, there will be no obligation to consider doing so. The proposed amendment would, in my opinion, conflict with that provision in so far as it would require written reasons for not imposing community service in circumstances where there is no requirement to consider such and also in circumstances where such service would clearly be inappropriate as the mechanism to deal with the consequences of a particular offence. It would be odd that there would be no similar requirement in respect of sentences of less than 12 months where an obligation to consider community service does arise.

Before commenting further on the amendment, I wish to address, in more general terms, the requirement on our courts to provide reasons. There is already an obligation on all courts to give clear and adequate reasons for their decisions and there is well-established jurisprudence to that effect. In the District Court, judges state their reasons in open court but, as stated earlier, they are not required to provide those stated reasons in writing. It has been considered that because the jurisdiction of the District Court is limited to minor offences, it would be an undue imposition to place upon it a requirement to provide written reasons for its judgments in all cases. I do not propose to change that practice for the District Court or other courts at this time. The question of an obligation to provide written reasons for sentencing decisions is broader than the matters contemplated in this Bill and would require extensive consideration and consultation.

I would also be concerned that requiring the provision of written reasons in respect of relatively straightforward cases would result in undue delays in determining the outcome of court hearings. If judges were required always to provide written reasons, this would give rise to a situation that only rarely arises in the District Court where, having heard a case and handed down a conviction, a judge might be obliged to automatically adjourn proceedings until another occasion in order to prepare a written judgment prior to sentencing. There is no requirement in this regard at present.

Bearing in mind that which I have outlined, I consider that the amendment, if accepted, could be regarded as an incremental approach to introducing written reasons. I am of the view that the latter would create a potential imbalance on two fronts. Given that it is limited to sentences of more than 12 months, it would apply only to the higher courts and would require them to provide written reasons and would, in effect — I presume this is an unintended consequence — exempt the District Court. The latter is particularly the case in view of the fact that the legal limit for minor offences summarily dealt with in that court is a maximum of 12 months. I do not consider it appropriate to introduce this distinction between our courts. I understand what the Senator intends but there is a technical difficulty with the amendment, as proposed. The amendment might also create an imbalance in so far as the circumstances in which the obligation to provide written reasons would arise.

The amendment requires written reasons not for the purpose of explaining a sentence, whatever it may be, but rather for outlining the position in circumstances where a community service order is not imposed. I would have to question the justification for not having a similar requirement in respect of other alternative sanctions or custodial sentences. However, I acknowledge that an amendment to that extent would, of course, fall outside the remit of the Bill before the House. Nonetheless, the distinction between community service and all other sanctions which this amendment would create is one which I would not be inclined to introduce.

For the reasons I have stated, I do not propose to accept the amendment. However, I welcome the opportunity it has presented to outline some of the issues surrounding this matter. I fully and unconditionally accept the Senator's good intentions in tabling this amendment and I understand that some of the technical issues arising out of the manner in which it was framed may not have been to the forefront of his mind.

Senator David Cullinane

I accept what the Minister stated with regard to the amendment giving rise to a technical difficulty and I bow to his knowledge and experience. If, however, one follows the logic of his assertion, one could argue that we are creating an imbalance because we are asking judges to consider handing down community service orders only in respect of certain crimes which attract custodial sentences of up to 12 months. I do not, therefore, accept the argument he is putting forward. In the amendment, all we are asking judges to do is to consider imposing community service orders rather than handing down custodial sentences. It will be the responsibility of a judge to make a judgment and to consider what will be the most appropriate punishment to impose or approach to take. The intention behind the amendment is to require that judges provide written reasons for handing down custodial sentences of, for example, six or eight months rather than — as we are asking them to do — imposing community service orders. I do not accept that the amendment would create the types of technical difficulties to which the Minister referred. As legislators, we create the laws and can set down how judges should interpret them. To follow the logic of what the Minister is saying, many imbalances have been created through decisions made in the Oireachtas in terms of how judges must interpret the scope of the laws we pass and the provisions and criteria contained therein.

I do not accept the merit of the Minister's argument in this regard, notwithstanding his acknowledgement of our reasoning in putting forward this amendment. I do not understand how the provision could be seen to impose a burden on a judge. All that is required is that he or she makes a simple statement as to why it was decided to impose a custodial sentence rather than a community service order. If judges do not make use of this legislation in the way that we hope, we will have to review it at some point. The provision of a written statement explaining why a custodial sentence was chosen would provide an insight into the reasoning and motivation of judicial decisions in this regard. That is all we are seeking. We are not looking to create any unnecessary imbalances between any of the courts in the State. It is not inappropriate for us to ask a District Court judge to do something that a Circuit Court judge, for example, is not obliged to do. It is appropriate in certain areas and I cannot see how it could be deemed otherwise.

Deputy Alan Shatter

For the reasons already given, I cannot accept the Senator's amendment, although I accept his good intentions in putting it forward. The Judiciary is obliged to comply with legislation enacted by the Houses of the Oireachtas. As such, it is important, in enacting legislation, that our intent is clear and that we do not create unnecessary difficulties or anomalies.

Leaving aside the technical problems that arise, the amendment makes reference to the provision of a written statement, not simply the giving of reasons. I certainly hope that where a judge has open to him or her the consideration of sentencing an offender to a term of imprisonment of one year or less and where he or she, notwithstanding the obligation imposed by this legislation to consider first a community service order, decides to impose such a sentence, reasons will be given for the decision. It is part of the concept of the administration of justice in this State that reasons should be given in respect of judicial decisions. It may not be necessary to do so in writing, but it is important that it be done. That information helps us to develop an understanding as to the application of legislation and, in this instance, an understanding of the rationale behind decisions to impose a prison sentence as opposed to community service or other possibilities such as fines or the application of the Probation of Offenders Act.

The essential objective of the Bill is to provide, within our courts system generally but particularly at District Court level, a uniformity of approach in regard to sentencing and the application of the community service orders scheme. It is my hope that the enactment of the legislation will produce that uniformity. The probation and welfare service will be called upon to prepare reports on the implementation of the community service orders scheme and that will provide a useful national oversight as to the extent to which the scheme is being uniformly applied. As I said yesterday, research has indicated that a significant small number of courts were producing the overwhelming majority of community service orders while, in other courts, a community service order was something of a rarity. These provisions will come into force in September, after the legal vacation has ended. With the assistance of the probation and welfare service, I hope an oversight of the working of the scheme will be available by the late autumn of next year. Should there prove to be any difficulty with the working of this legislation or should we discover it is not being utilised in the way envisaged, I assure the Senator that I will revisit the issue.

Amendment put and declared lost.

Section 3 agreed to.

SECTION 4

Senator David Cullinane

I move amendment No. 2:

In page 5, between lines 24 and 25, to insert the following:

"(iv) having considered a victim impact statement prepared by the victim of a crime, where applicable, if said victim so wishes to furnish such statement,".

The issue of victim impact statements was raised with me by various interested individuals from outside the House. I have used the phrase "where applicable" because in some cases it may not or will not be applicable to make provision for such statements. Moreover, what is proposed will only apply where the victim wishes to furnish a statement. When a community service order is made, the probation officer must draw up a report. It is not unreasonable that the victim should be provided, as part of that process, with a mechanism to contribute by way of a victim impact statement. It could be argued that this would constitute a form of restorative justice and an appropriate and important measure for both the accused person and the victim.

There has long been discussion in legal circles in regard on the problem of the estrangement of victims within the criminal justice system. I have heard the Minister speak about this in recent years. Society's primary concern in regard to the administration of justice is that we receive protection from criminals, but it is also important that victims are placed at centre stage in the justice system. Victim impact systems can help to remedy the estrangement experienced by many victims within the judicial process.

Every crime has a victim. As such, the effect of the crime on the victim should at least be a consideration where a judge is leaning towards the imposition of a community service order rather than a prison sentence. We must examine the possibility of including victim impact statements as part of the process of determination of an accused person's suitability for community service. It may be the case that the effects on the victim of the actions of the accused are such that it is not appropriate for the latter to be at large in the victim's community. Naturally, the judge's discretion in this matter will be retained, but he or she should have the opportunity to take such factors into consideration. I appreciate the point made by the Minister on Second Stage that this legislation relates to offences on the lower end of the scale whereas victim impact statements generally apply to specific, more serious offences. Nevertheless, we should consider whether there is scope for the provision of such legislation under the terms of the legislation.

It is crucial that we seek additional ways to make victims of crime more involved in the criminal justice system generally. Victims want to play a part and to have their say. No matter what the crime is, that opportunity should be open to individuals. Victim impact statements could form part of what the Minister is intending to do in the area of community service orders. There is always room for improvement in ensuring victims have a greater voice and that their account of their experience of crime is an integral part of the criminal justice system.

It could be argued that the victim's experience of the crime suffered is an integral part of the criminal justice system. The victim is looking for justice and that is what the justice system is about. Those who are guilty of offences should be subject to the law of the land and the victims should be protected and should receive justice. The best way to ensure a victim receives justice is to make a victim impact statement and give an account of the experience. I ask the Minister to accept this amendment. We also tabled this amendment in the Dáil in the hope the Minister would accept it. We are always hopeful that the Minister is open to persuasion. Whoever he is texting on his mobile phone may be able to persuade him.

Deputy Alan Shatter

I thank the Senator for raising this issue. I have a particular interest in ensuring we put victim interests centre stage and in addressing some of the gaps in our legislation with regard to victims and their rights. I published two Private Members' Bills in this area and a victims' rights Bill is to be prepared and I hope it will be published in 2012. It is one of the priority measures in the Government programme for law reform agreed between the Government parties, Fine Gael and the Labour Party.

I cannot accept the amendment. Under the Criminal Justice Act 1993, as amended by the Criminal Procedure Act 2010, a court shall, in determining sentence to be imposed, take into account, and may, where necessary, receive evidence or submissions concerning any effect, whether long term or otherwise, of the offence on the victim. The court shall also, upon application of the victim, hear evidence from that person as to the effect of the offence on such person.

The 1993 Act, as amended, applies to a range of offences against the person, namely, sexual offences, offences involving violence or the threat of violence to a person, an offence under the Non-Fatal Offences Against the Person Act 1997 and an offence consisting of attempting or conspiring to commit or aiding or abetting the commission of the aforementioned offences. In effect, where sentence is being imposed for one of the above-mentioned offences, the victim may apply to the court to be heard by it in respect of the effect of the offence on the victim and, when so requested, the court is required to hear that person.

The impact of the proposed amendment would be to extend, in respect of the offences to which they would apply, the use of victim impact statements beyond that provided under the 1993 Act. At the same time, the amendment would limit this extension to circumstances where community service is being considered, which would be inconsistent. I do not consider this an appropriate amendment to the existing use of victim impact statements. A Bill concerned with increasing the use of community service is not the right mechanism for making changes to victim impact statements. Any extensions or amendments to the use of victim statements could properly be considered in the context of the Criminal Justice Act 1993 or in the context of legislation to deal with victims' rights. In the context of the victims' rights Bill, it is my intention to review the current law that applies to the use of victim impact statements and the making of such statements. I hope to publish the Bill in 2012. There is scope for the greater use of victim impact statements but there are certain types of offences to which a victim impact statement is not relevant. We must ensure we do not overburden the courts to hear statements that are of no great relevance, where they may not be required and in circumstances where victims may have no interest in making such statements. I would like to see this area dealt with in a broad sense. Within the victims' rights legislation there may be an all-embracing, comprehensive provision dealing with victim impact statements and addressing the circumstances in which it is appropriate to extend them so the court is aware of the impact of particular offences on victims when considering sentencing options.

In considering options, the court must consider a broad range of issues, not just the impact on the victim of a particular offence. The impact on a victim may not only derive from the nature of the offence but may be partly or substantially influenced by the unfortunate victim's history, by other issues in the victim's life or background and this could result in what would generally be understood to be a minor offence having an impact that could not readily be anticipated or understood. These are matters we must address carefully so there is a balance in how we approach it. It has long been my view that the position of the victim must be strengthened and some of the changes I have been advocating have been implemented in recent times. Some have not been implemented and at European Union level there is work under way to provide European Union regulation on victims' rights. A framework document has been in existence since 2001 and discussions are ongoing in order to ensure victims of crime are treated uniformly across the European Union. I have been at a number of meetings of the European Council of Justice Ministers and at informal meetings where the substance of the regulation was under discussion. It has been published in draft form and work remains to be done on it. The work I intend to develop in my Department will also be influenced by the work at European Union level. It is important to have uniformity of approach. I hope the work we are doing will ensure the best possible regulation is adopted at European Union level. I cannot accept this amendment.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Sections 5 to 14, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Justice and Equality (Deputy Alan Shatter)

I thank Senators for their support and for taking the Bill today, allowing us to complete it. I share the hope of everyone here that it will make a significant difference to the manner in which sentencing is dealt with, particularly at District Court level.

Senator Denis O’Donovan

I thank the Minister for this legislation. I have long been a supporter and advocate of community service orders, which is a relatively new concept in legal history. We must ensure the District Courts use these orders and that not using them is the exception rather than the rule. It is a good system and helps to keep people on the fringes of crime out of the courts system. It gives young people a chance and, because of my political career, my limited experience is that many young people will mend their ways when given a chance rather than a custodial sentence. I recall an incident in which a vessel was boarded by Naval Service officers, who found that someone was illegally fishing salmon. This poor man, who was an ordinary Joe Soap, ended up being wrongfully incarcerated for three months, and when he came out he said to the lads in the local pub, "When I went in I knew nothing about crime, but I have learned a lot. I know how to steal televisions." This guy learned more about crime in prison than he had known previously. He should never have been incarcerated.

I fully support the purpose of this legislation and I hope it will make a significant difference to our legislative approach in dealing with minor offences.

Senator Colm Burke

I thank the Minister for introducing this legislation, which is welcome and is extremely important. Like Senator O'Donovan, my experience in the District Court has been of a limited nature. I was surprised by the figures given for the use of community service orders.

It is also welcome because it deals with the imposition of fines. The Act of 2010 helped in this regard. Previously, excessive fines were imposed on people and, particularly in view of our economic circumstances, many people were not able to pay them. My experience, in the past three or four months — it may have been the last District Court case I appeared in — was that a fine of €4,000 was imposed on my client and the immediate response was to appeal the matter to the Circuit Court, which would have taken up even more of the time of the court and the gardaí involved. A community service order might have been a far more appropriate procedure in that case.

Something to which I referred last night was the need to steer people away from getting even as far as the District Court. I mentioned people who had dropped out of school. Interestingly, in the survey to which I referred last night, more then 70% of the people we surveyed five years after leaving the facility with which I was involved had neither a father nor a grandfather who had worked. These people were going down the road towards crime. The more we can do to steer people away from going down that road, the better. The next step when matters do reach the courts, is the community service facility. This is a welcome Bill and it is important that it is implemented. I thank the Minister and his officials for introducing it.

Question put and agreed to.