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Seanad Éireann debate -
Wednesday, 22 Feb 2017

Vol. 250 No. 5

Minimum Custodial Periods upon Conviction for Murder Bill 2017: Second Stage

I welcome the Minister of State. I call the Senator proposing the Bill, Senator Marie-Louise O'Donnell, to speak.

I move: "That the Bill be now read a Second Time."

I thank the Minister of State for his presence. If people are charged with and convicted of murder in Ireland they will serve the ludicrous term called life imprisonment. It is absurd and ludicrous because it is not life imprisonment. It is a minimum seven-year sentence. There is every likelihood that the murderers will get out at somewhere between 13 and 17 years and some will serve even less. Reasons for mitigation are numerous and enumerated. We tend to hear about mitigating factors but never about aggravating. None seems to exist on the other side of the criminal justice system or on the side of the seriousness of the crime, murder, the taking of life. The word "proportionality" is only applied to the offender, it is rarely applied to the victim. My Bill, the Minimum Custodial Periods upon Conviction for Murder Bill 2017, sets out to address this problem and certain other issues pursuant to it.

I stand here today as a Senator but also as a patron of AdVIC, Advocates for the Victims of Homicide. AdVIC has been my greatest teacher. Let us not forget that this Bill is about murder. The Bill is concerned with, and only with, the length of sentences served by those convicted of murder in this jurisdiction. It is concerned with the profound seriousness of the offence. There is nothing more serious than murder. It is my belief that we must start with minimum tariffs for murder. The mandatory life sentence as it stands today must now be abandoned. This is the central premise of the Bill.

The Bill provides for minimum tariffs for murder, similar to the English and Welsh model, to be introduced in Ireland. What does that mean? It means that the Bill provides a mechanism whereby the court can, upon passing sentence for murder, determine the amount of time the offender will spend in prison before he or she may be deemed eligible for release. The Bill cannot imply the abandonment of judicial discretion when sentencing for murder, because there currently is no discretion. There is a mandatory life sentence but that does not mean life under the Irish system of justice. It means a myriad of different levels of sentences. These myriad level of sentencing cause shock, horror and downright disbelief in the public. What has it caused the families of the victims in the Public Gallery? That is the question. That is the question of real justice. It has caused days, weeks and years of abject despair, breakdowns, illness, break-ups and depression because of justice not serving the victims of the savage murders of their loved ones.

The examples are numerous and they fill our daily papers. Minimal custodial sentences for murder can, at the very least, go somewhere towards changing that landscape. Minimum custodial sentences for murder, as this Bill proposes, have a specified number of years attached to them. A sentence of life in the Irish criminal justice system does not. A sentence of life does not mean life; it means a minimum term of imprisonment of seven years. That is all it is. After seven years, a murderer's release becomes a possibility. A minimum custodial sentence would now allow for judicial discretion to become available for the first time in cases of murder. This is a most important point. At no place in this Bill is the Judiciary undermined. It is quite the contrary.

Minimum tariffs or sentences are critical if we are to achieve justice for the victims and their families in the Public Gallery and the wider community. Society must evidence a minimum level of disapproval when it comes to murder, regardless of individual case circumstances.

Mr. John O'Keeffe, a director of Advocates for the Victims of Homicide, has argued for this change for years. I am delighted he is present this afternoon together with members of his organisation and others who have been so profoundly affected. I am humbled to have the privilege to be the voice for Annie Mulvaney, whose son Brian's life was taken from him on the streets of Dublin, for Joan Deane, whose son Russell's life was taken from him in a most brutal manner in his own home, and for Gerard Guinee, whose daughter Karen's life was taken in a most savage way in her first week as a newly qualified doctor. These are but three people in the Gallery filled with despair. It is unconscionable that such murder and slaughter would not be met on conviction with minimum custodial sentencing.

Giving life as a sentence means little; it is just a rubber stamp. Once a verdict of murder comes in, a judge's role is merely to rubber-stamp the available punishment. Life does not mean life in Ireland. It falls to a collection of civil servants and political appointees who make up the parole board and operate behind closed doors to decide whether murderers will re-enter society. Under the current system, a prisoner with a life sentence must serve seven years before being considered for release by the parole board. After seven years, the board reviews the prisoner's file every few years and makes a recommendation to the Minister for Justice and Equality. According to Dr. Diarmuid Griffin, a criminologist who specialises in the area, the average sentence for taking a human life is hovering around 17.5 years while the final decision rests with the Minister for Justice and Equality. Dr. Griffin found in his research that, in the vast majority of cases, the Minister will go with the decision of the Parole Board.

Let me refute some of the arguments against and objections to this Bill that are likely to be articulated. It will be said there is no need for this Bill on the grounds that prisoners are now serving 17.5 years for murder whereas, in the 1970s and 1980s, the average term for a convicted murderer was 7.5 years. It will be said the term has increased but this is a false dawn for a variety of reasons, reasons that this Bill will alter again for a variety of reasons. The trend is currently upward but there is no reason to believe it will not shortly go back downward. The trend is an average. Indeed, a trend is a trend. Many convicted murderers still serve far less than the aforementioned term. It should be stated very clearly that no one serves a true life sentence in Ireland. In reality, the minimum sentence may be reviewed after seven years and the prisoner may be released.

There is no certainty with a life sentence as matters stand. Some will be released after 15 years, some after 20 years, some in fewer than ten years, and some after 30 years. What is the reason one prisoner serves ten years for murder while another serves 30? This indicates zero transparency when it comes to time served for murder.

Let there be no doubt in this Chamber today that there is zero certainty for families. After seven years, they must run the gauntlet of questioning whether the prisoner will be released. The only people to get a true life sentence are the families before us today in the Public Gallery. This is the kernel of the problem. The Bill can change that in an achievable way. The current life sentence lulls the public and even the Judiciary into a false sense of security. On what basis was all this decided? There was no basis. This Bill will alter that. Importantly, even the normally reserved Law Reform Commission published a report on sentencing in 2013 recommending that the courts should at least be able to recommend a minimum term that a murderer should serve. This Bill is merely a natural progression of that report.

Another objection that is well articulated is that this Bill will fetter judicial discretion, which is at the heart of our legal system. It is argued that judges will not have any power and no discretion. Nothing could be further from the truth. The Judiciary has no discretion currently when a person is convicted of murder. It must be a life sentence. What this Bill does is grant judicial discretion where it has never before resided. Once this Bill is enacted, an Irish judge may exercise his or her discretion for the first time when it comes to murder. The judge will simply land on a suitable tariff – be it 25, 30, or 40 years – depending on the severity of the crime and then decide whether the sentence should rise or fall, depending on a range of approved criteria.

What about the argument that mandatory sentences do not work? This is rubbish. Possession of drugs with a value greater than €13,000 provides for a minimum sentence of ten years. Firearms offences carry a minimum sentence following conviction on indictment. Ireland is replete with maximum sentences for offences that are rarely ever met. What societies and families of murdered loved ones want is sentencing that reflects their minimum disapproval of the crime of murder, regardless of the nature of the specific murder.

It is argued this Bill is unconstitutional. If in doubt, bring the Constitution out. The Constitution is not a golden wand. Minimum sentences in other contexts have been deemed unconstitutional and there have been plenty of Bills that have passed through this House and the Lower House in respect of which this somewhat tired charge has been made. The constitutionality of this Bill, if enacted, will be tested by the courts in due course, as has always been the case. It is my contention that it does pass constitutional muster. Just because it is brave does not mean it is unconstitutional.

To be forgotten is to die twice. That is how the families of murdered loved ones feel. They have lost a family member violently and savagely and they are then subjected to an indifferent criminal justice system, which, indeed, we could call callous. It is called the criminal justice system because it is for criminals. That is where the justice lies. There is no balance. It is not about the victim. Justice is certainly not evenly distributed. Even distribution is exactly what I am trying to argue for today. It is not vengeance that I seek, and it is not retribution. Not one of the families, including the mothers, fathers, brothers and sisters, of the murdered in the Gallery this evening has ever spoken to me about punishment or revenge. What they have spoken about is keeping murderers off the streets. It is a question of parity of esteem and cognitive closure reflecting that the lives of their beloved had significance. Surely our greatest significance is our life. It is our most valuable resource. It is our only resource - being alive, being alive, being alive.

Language and communication take second, if not third, place to the fist or the knife. We even witness brawls on Parliament floors on our televisions. It is astounding we are now at a stage when nobody takes violent crime seriously anymore. It is regarded as an acceptable method of communication in film, video, games, some sports and news. We understand the language of violence better than the language of reconciliation and, may I go so far as to say, the language of harmony. It is our very best communicator. Kick out, stab out, hit out, shoot out: we are appalled but only for a minute. This Bill cannot alter or transform that but it can ensure that those who perpetrate the foul and heinous crime of murder and are convicted will receive significant minimum custodial sentences with the exercise of judicial discretion for the first time in this State and that those who are left behind do not have to question why justice was not done or seen to be done. I am leaving this in the hands of the Minister of State and I await his decision on what we should do now.

I congratulate my colleague, Senator Marie-Louise O'Donnell, on the introduction of the Minimum Custodial Periods upon Conviction for Murder Bill 2017. This is the work of the Seanad. The Seanad is about righting legislation that is wrong or in some way flawed. I am happy and proud to support my colleague Senator O'Donnell.

I welcome the clarity this Bill offers the Judiciary in making sentencing decisions and the reassurance that it will offer families bereaved by murder. I welcome the members of AdVIC who are in the Visitors Gallery today. I know how important this legislation is to them. We all know that a conviction for murder carries with it a life sentence, but a life sentence does not mean the person convicted will spend the rest of his or her life in prison. In fact, life sentenced prisoners can have their cases reviewed by a parole board after seven years. In 2013, the Law Reform Commission recommended by a majority that the mandatory life sentence for murder should be retained. It also recommended, unanimously, that legislation be enacted to permit a judge who imposed a life sentence for murder to recommend a minimum period which the person should serve in custody. This Bill offers a framework for judges by suggesting minimum custodial sentences of 25, 30 and 40 years, depending on the seriousness of the murder upon conviction.

The Bill is explicit in its categorisation of murders and if enacted will ensure that those convicted will be given sentences appropriate to the nature of the crime committed. We all know that murder is a heinous crime and this Bill introduces within the concept of murder the categories of "most serious upon conviction", "serious upon conviction" and "other cases upon conviction". In determining the category of seriousness, judges are offered detailed guidelines such as whether or not violence was used, whether the murderer had previous convictions and other aggravating factors. Mitigating factors, such as the age of the murderer, will also be taken into consideration by the sentencing judge. The Bill leaves it up to the court to determine the weight to be applied to any category, and contrary to what some commentators believe, it does adhere to the concept of judicial independence and discretion to impose sentences in line with the severity of the offence within specific guidelines.

One of the most important aspects of this Bill is the opportunity it provides for the court to consider, where appropriate, victim impact statements. The value of human life, the unimaginable loss to families and communities should always remain central to the seriousness of murder. This Bill, while giving full discretion to the court to decide on whether victim impact statements should be considered also allows them to form part of the reason for imposition of a specific minimum custodial sentence. I welcome this aspect of the Bill. I do not see it in any way taking away from the rights of the offender. As stated by my colleague, there has been a slow evolution from mandatory life sentence for murder in the 1960 Criminal Justice Act to the commonplace early release of prisoners serving life sentences. While I am a great supporter of rehabilitative justice and the outstanding work done by the State probation service, I also believe in justice for victims and the value of an appropriate sentencing system as a solid deterrent against further crimes of murder. I agree that this Bill needs some refinement but I would strongly urge the Minister of State to accept it today and to amend it as necessary on Committee Stage.

We have spoken in this House a number of times about members of An Garda Síochána and young adults who go at night never to return home, taken in the most violent manner from the people who loved them most, leaving families with no opportunity to say good-bye. We cannot allow the system to continue as is. This Bill, while a simple Bill, is an important Bill because it takes away the uncertainty. It gives back to the victims, the people left behind, some semblance of justice. Murder is vicious. Murder takes from the family. It takes the lives of those they loved. We must keep the crime of murder in our focus. The son of one of my dearest friends was murdered on a night out. His parents had no chance to say good-bye to him and no opportunity to understand what happened. They had no further contact with a son they watched grow up and achieve at the highest level in university. He was beaten to death with a concrete block. He was murdered. The parents of that young man had no opportunity to say good-bye while their son's murderer will be out of prison in a few years and walking the streets again. We must see this Bill through to enactment. Whatever amendments the Minister of State of his officials believe are necessary I am sure my colleague, Senator O'Donnell, will be open to them, provided they are realistic. We must support her and this Bill. I am proud to do so today. I hope that when we leave here this evening it will have been agreed to allow this Bill to progress to the next Stage.

I welcome this debate, which is long overdue debate. I welcome the Minister of State and the families in the Visitors Gallery whose children were murdered.

I believe that murder sentencing in this country is not fit for purpose. Change is long overdue. There are many serious categories of indictable crimes such as rape, murder and so on but none are treated in the same manner as murder. Once a person is found guilty of murder the judge has no choice but to impose a life sentence. He or she does not have the discretion to consider issues such as whether the murder was pre-mediated or the circumstances surrounding it and so his or her hands are tied. I commend Senator O'Donnell on what she is trying to do in terms of broadening that out. However, the reality is that after seven years the parole process comes into play. A person given a life sentence for murder could be released as early as 12 years. The average sentence served for murder is 18.5 years. What does this mean? I know that the parole board takes into account many different things but to my mind all it does is commence the charting of a pathway to freedom for somebody who has taken the life of another person. I do not think that is right. As I said, once a judge has handed down a sentence the matter is out of his or her hands and the case is then taken up by the parole board after seven years. A parole board meets in private, considers a case and makes a recommendation to the Minister. We should demand a higher standard from our criminal justice system and ensure that decision-making around the minimum sentence that a person convicted of murder might serve is done in public in a court of law. Anybody can go into a court and listen to a case and the judgment of a judge. We may all have different views on judgments but there is transparency around them. We want and respect this process but that process is not carried through to parole boards.

I have previously raised concerns about the following issue. The Law Reform Commission reported in 2013 that it takes issue with the manner in which life sentences are handed down. In terms of recommendations, it takes the view that the judge should have the discretion to impose a minimum sentence that must be served. As things stand, judges cannot do this and that is not right. If the Law Reform Commission, AdVIC and other stakeholders are suggesting this then we need to pay heed to it.

Other stakeholders are also suggesting this and we have to pay heed. I do not understand why nothing has been done about it. I agree with Senator Craughwell. A progressive approach which is seen to be meting out punishment is equivalent to rehabilitation. We can go too far with that. While we would like to rehabilitate criminals, we have to be careful. When a person crosses a line and commits a serious crime, a guillotine should come down. There has to be a severe punishment and an offender must pay a significant price. If he or she takes a life, a sentence of 18.5 years should be imposed. A murder conviction relates to the wilful taking of a life, not an accident or manslaughter. This situation offends our own innate sense of justice.

I received a great deal of feedback on one case prior to Christmas. Everybody has a case and it relates to a loved one. Christmas day was the eighth anniversary of the murders of Sharon Whelan and her daughters, Zara and Nadia. Brian Hennessy, who carried out the murders, was considered for parole after seven years of his sentence, but, worse than that, he was initially given three life sentences to run consecutively before the Court of Criminal Appeal decided they should run concurrently. That is crazy and I do not know how we can stand over that. If someone commits a crime and then does so a second or a third time, unless there are extenuating circumstances, he or she should serve consecutive sentences. I again make the distinction between indictable offences and summary offences, which are minor. I refer to the most serious crimes, which offend us all and which we all want to guard against. We are not just talking about a deterrent or rehabilitation; we are talking about a severe punishment for people who cross that line. The public should be satisfied that there is a sentence to match the severity of the crime that has been committed.

I acknowledge good inroads have been made on tougher sentencing but there must be a closer examination of what constitutes a life sentence. A great deal of good work has been done on law reform, especially in strengthening the law in respect of repeat offenders and those out on bail. It is nonsensical what some offenders have got away with engaging in criminal activity. We should pursue this debate until the law is amended. Judges should set out the terms of a minimum life sentence, bearing all the circumstances in mind. This would give solace to the families of some victims in the knowledge that the perpetrators of these heinous acts would go to prison for a long time. The Government is strengthening the right of victims of crime and their families thorough the implementation of the EU victims directive and providing for a right to access to information and protection for victims, which is important. Crime victims and their families often feel alienated by the criminal justice system. In view of the consequences of being convicted of a crime are serious and justice must be blind and administered that way, it is even more necessary to keep victims abreast of what is going on in order that they can experience a sense of justice and they are not alienated. While victims are witnesses, the greater good is served when offenders are tried for serious crimes. However, victims need to be made more aware of what is happening. I welcome the steps that will be taken in this regard but we have to persevere and do all we can to keep violent offenders off the streets, and make sure they are properly punished and their sentences serve as a deterrent to others.

I would appreciate it if the Minister of State in his reply would, in particular, address why the LRC report has not been acted on to the date. I commend those who have brought this legislation before the House.

Members cannot criticise individual sentences. Comments should be general in nature.

I thank Senator Marie-Louise O'Donnell for bringing this legislation to the House. The lack of consistency of sentencing, in general, and not just for murder, is a serious issue. I welcome the victims of crime and their families who are in the Visitors Gallery and the representatives of AdVIC because this is a difficult debate.

I concur with fellow Senators regarding the LRC recommendation that judges should be permitted to proposed a minimum mandatory sentence, which would then be used as a guide for the parole board. Fianna Fáil has a Bill before the Dáil, which is awaiting Committee Stage, based on that recommendation. It proposes that the minimum sentence recommended by the judge should be used as a guide by the parole board and that the board be put on a statutory footing. This would remove the authority to decide if an offender should be released by a certain date. Currently, responsibility for granting parole lies with the Minister, ultimately. The parole system that operates at the moment is entirely at the discretion of the Minister and it is not fit for purpose. It is not on a statutory footing and it has eroded the separation of powers, which is a fundamental of the rule of law in our country and many modern democracies. Fianna Fáil believes that a body that performs functions as important as the parole board such as advising whether convicted killers or rapists should be released should be clearly defined and organised in statute. The failure to place the board on a statutory footing means its important functions are denied the force of law and merely constitute a form of advice provided to the Minister. This is particularly problematic since prisoners who believe they have an entitlement to parole can avail of the courts to achieve this entitlement. More fundamental, there is something incoherent about having a member of the Cabinet making decisions on matters that were initially decided by the Judiciary. This practice offends the principle of the separation of powers and politicians should be kept away from making decisions that should be in the hands of the court. The sentencing of convicted prisoners is an integral part of our criminal justice system. It constitutes very much an injustice for victims of serious crime. The ad hoc basis for granting parole, which is ultimately at the discretion of a politician, is outdated and it should be amended to properly reflect a modern judicial system.

We will not support the legislation because the Fianna Fáil Bill before the Dáil adequately addresses this matter. It gives the Judiciary, which has full knowledge of cases and mitigating factors relating to the accused, the power to recommend a minimum sentence that can then be proffered to the parole board, which will be put on a statutory footing. Its members will be independent of politicians. They can use the guideline the judge has given them for release dates.

Some of the Bill's provisions are antiquated.

It would make our laws one of the most stringent in Europe. There may be, as mentioned, constitutional and human rights issues with the Bill.

Gabhaim mo bhuíochas leis an Aire Stáit as a bheith linn inniu don díospóireacht thar a bheith tábhachtach seo.

I welcome the opportunity to speak on Senator Marie-Louise O'Donnell's Bill. We acknowledge the real significance of the intent and the sincere and honest desire to see a change in the law in this regard. While there will be a divergence of opinion on this Bill and some of the nuances concerning it, given that some of the victims and the organisations that represent them are in the Visitors Gallery, as has been reflected thus far it is important that Members of the Seanad have approached the debate in a very respectful frame of mind.

Like my Fianna Fáil colleague, we will be opposing the Bill. That is not to take away from the Senator's passionate contribution. I appreciate fully why she wants to see this Bill advanced, but let me outline some of the reasons Sinn Féin will be opposing it on this Stage.

This Private Members' Bill is designed to provide a mechanism whereby the court, on passing a sentence for murder, can determine the amount of time an offender will spend in prison before he or she may be deemed eligible for remission, parole or early release and introduces minimum custodial periods of sentencing depending on the category of the type and nature of the offence of murder. Currently a conviction for murder receives a mandatory minimum life sentence but the actual length of time which an offender will serve in prison depends on the circumstances of the case. Under this Bill the person convicted will serve a minimum of 25, 30 or more years, depending on the circumstances. There is a provision to give judicial discretion but with the caveat that an offence cannot have a sentence lower than the 30 years or 25 years as set out in the Bill.

Our party's approach to justice matters is that policy should be developed on a clear and evidential basis. While I recognise that the proposed provisions of the Bill are not quite mandatory sentencing, given there is some very limited judicial discretion in it, the manner in which it is constructed is certainly akin to a mandatory sentencing regime, depending on the nature and type of murder for which a defendant is convicted.

Sinn Féin is opposed to the use of mandatory sentencing. While advocates of mandatory sentencing argue that it makes sentencing more consistent and judges more accountable for their decisions, its use holds the potential for miscarriages of justice. By applying an identical sentence to all offenders who have committed similar but not identical crimes, it is in our view an overly blunt sentencing tool. It is our belief that the Bill, in spite of the range of items that a judge may take into consideration, will prevent the Judiciary considering the nuances of the situation, including offender intent and degree of social harm. We believe there is more than what is contained in the Bill that must be taken together in order to form a complete picture of the seriousness of the offence and the appropriateness of a given sentence. This, of course, could create the potential for an injustice. We are not convinced either that this would have any deterrent factor on those at whom it is aimed.

Sinn Féin believes, indeed agrees with the drafters of the Bill, that sentencing must be proportionate to each crime committed, but judicial discretion is essential when determining the sentence to be administered by the court. This allows the judge to factor in the circumstances in which the offence occurred, whether there were aggravating factors, particularly violent behaviour, as well as the character, age and previous criminal record of the defendant. It allows the judge to consider alternatives to custody such as rehabilitative programmes where they may be appropriate. I accept and acknowledge fully also that there will be occasions where that is not appropriate. It is our view, and this applies to all offences across the board, that the introduction of non-statutory sentencing guidelines should include setting out the principles that should underpin sentencing, including the principle of imprisonment as a last resort, community safety imperatives and the principle of proportionality between the severity of the sentence and the seriousness of an offence.

I recognise the particular issues pertaining to the mandatory life sentence for murder in Ireland but it is our view that a sentencing guidelines council should be established to monitor sentencing guidelines and their effectiveness. The Law Reform Commission that has been mentioned has also called for a similar body to be introduced. The effect of this Bill is to introduce a sentencing regime that is tantamount to mandatory sentencing regimes. While we acknowledge there is scope for some judicial discretion, the introduction of minimum custodial periods of detention effectively amounts to a presumptive sentencing regime.

While we support the idea of judges taking into account degrees of planning and premeditation, other offences and mitigating factors such as a lack of premeditation, or whether the offender was provoked through domestic violence or acted in self defence and co-operated with the Garda Síochána, we believe the objective would be better achieved through the introduction of a sentencing guidelines council that would effectively guide the Judiciary in its task. The Law Reform Commission has repeatedly called for the establishment of a body that is empowered to develop and publish non-statutory sentencing guidelines, reflecting the general aims of the criminal sanctions. These could set out the principles that should underpin sentencing, including the principle of imprisonment as a last resort and the principle of proportionality between the severity of the sentence and the seriousness of the offence. It is our view that this would be a more appropriate approach to take for all offences. We further believe that sentencing judges should provide written explanation of any custodial sentences imposed, including the mitigating and aggravating factors considered. It would also be helpful if plans were established at the outset of all sentences for the convicted person regarding his or her imprisonment and engagement with rehabilitation services.

I commend the Senator's wish to examine this issue but believe that the offence of murder should not be dealt with in isolation and that non-statutory sentencing guidelines would be a much more appropriate approach to take at this stage. As I said at the outset, I appreciate fully the intent of Senator Marie-Louise O'Donnell. I hope to work on this issue with the proposer and seconder and other colleagues on this much-needed review of our criminal justice system and our sentencing laws.

In the spirit of honesty and genuine aspiration to change the law, we do not think this Bill does what is necessary.

I acknowledge and welcome the Minister of State, Deputy Stanton, and his officials who I know well and also those in the Visitors Gallery who have been affected so personally by this issue of murder.

The contribution of Senator Marie-Louise O'Donnell was very impressive. I congratulate her for introducing this Bill because it allows us to discuss the issue of murder.

In fairness, as I stand here in opposition to the Bill, I do so in an attempt to give a nuanced point of view, which does not in any way mean that I or people who have a similar point of view, as has been articulated already, are in any way not aware of the effects of murder, that it is a life sentence for the families of the victims of murder, and that nobody wants to send a message to society that murder should not be punished. However, we have to deal with realities.

Ireland currently has a mandatory life sentence for murder. Just ten EU member states have mandatory life sentences for murder, others have minimum sentences ranging from ten years. A life sentence always lasts for life although the portion of the sentence served in prison can vary. If released from prison, the person remains under licence and can be recalled at any time for breach of conditions. This Bill seeks to introduce minimum custodial periods that must be served in prison before release on parole can be considered. There are benefits to bringing clarity and certainty to the portion of the life sentence that a prisoner can be expected to spend in prison. There is a life sentence already. What is at issue and what we are discussing is the portion of that life sentence which is spent in prison.

The basis for the starting point of 25, 30 and 40 years in the Bill is unclear. These starting points would put Ireland at the more punitive end of the range in Europe, as has been said by my colleague in the Fianna Fáil Party, and more in line with Russia, Poland, Estonia and Moldova than western European jurisdictions such as Denmark. Minimum sentences are not averages. A sentence of 25 years is one of the highest minimum periods that would be enforced in Europe. In Ireland, life sentence prisoners can apply for parole at seven years but would have no realistic prospect of release until at least 15 years have been served.

The average time currently served, as the proposer of the Bill has pointed out, is 17.5 years. If we are talking about trying to deter people from committing a murder, if somebody expects to serve 17.5 years or 25 years, I am not sure that factor will be considered by somebody intent on committing this crime.

Average time served by people sentenced to life imprisonment increased from 11 years in 2002 to a peak of 22 years in 2012 and 17.5 years in 2015. The length of time served is increasing. However, due to the low number - between one and six - of life sentence prisoners who are released every year, the average length of time does not give a clear picture. For example, in 2012 a prisoner died in hospital having served 36 years of a life sentence. In 2013 a life sentence prisoner was released having served 13 years. The circumstances were very different in those two cases. There are approximately 355 people in prison in Ireland serving life sentences, not all for murder. Some 12 of these are female.

This is probably not a very popular point but it is one that is important to put on the record of the House. The impact of this Bill on prison and justice resources, indirectly and unintentionally, would be immense. My view is that it would be far better to invest resources in crime prevention than punishment. I often make the point that in New York, planning for prison spaces required in 15 years time involves looking at the literacy rates of 11 year olds. In circumstances were people are grieving for lost loved ones because of murder, the circumstances or the conditions of a life that lead a person to commit a murder is the least of their concerns, but in the overall sense it is an important point which needs to be made in this debate, which is only happening because of the Bill that was put forward by my colleague.

Life sentence prisoners are a huge drain on prison resources due to particular needs over a longer time. If one gets a life sentence, it is a life sentence. What we are debating here is the period of time of that life sentence that is spent in prison.

Proposals that should be considered instead of this Bill, which are backed by the Irish Council of Civil Liberties, are that delayed proposed changes to presumptive minimum custodial periods under conviction for murder should take place within the context of parole reform as per commitments by successive Ministers for Justice. In 2014 the cross-agency Department of Justice and Equality's strategic review on penal policy, which included victim representative groups, recommended that a minimum term before parole can be considered should be set out in statute that more accurately reflects the expectations of offender and society. The review group expected that this would be achieved within legislation establishing a parole board on a statutory basis.

I commend the proposer of the Bill for her passion in bringing forward this debate to the House. Those of us with a nuanced view of this issue are not in any way trying to suggest that we are soft on crime or soft on murder, but we want to deal with the realities of the situation. Opponents of the Bill are not in any way trying to diminish the suffering or the pain that has been felt and experienced by those in the Visitors Gallery today and throughout Ireland who have been victims of murder. Most people in this House would have been to the funerals of murder victims, as I have been myself. We have to deal with this in the round and speak honestly. We have to speak as legislators. While congratulating the Senator on bringing this Bill to the House, because we would not be having this debate if it was not for her initiative, I and my party will be opposing the Bill.

I welcome the Minister. I have consulted my Civil Engagement colleague, Frances Black, who is a member of the Joint Committee for Justice and Equality. At present in Ireland a murder conviction carries a mandatory life sentence. However, the length of time served in a prison can vary greatly depending on a range of factors, including the circumstances of the case and the operation of executive mechanisms that regulate the custodial process. This tends to create a sense of uncertainty around sentencing in murder cases, and it is not clear how long a person will actually spend in prison. In 2013 the issue of murder sentencing and the duration of custodial periods following murder convictions were examined by the Law Reform Commission and it recommended that legislation should be introduced to allow the court to recommend a minimum term to be served by an offender upon conviction of murder. The Minimum Custodial Period upon Conviction For Murder Bill 2017 seeks to rectify the current situation and create certainty around murder sentencing. The Bill provides a framework for the court to determine the length of time a person convicted of murder will serve in prison before being considered for remission, parole or early release. The introduction of suggested minimum custodial periods of sentencing will categorise a murder offence dependent on its severity. The court will use its discretion to decide a minimum custodial sentence to be served within the framework of categorisation contained within the Bill.

I do not recognise that the Bill sets out a clear enough framework for the categorisation of the nature of the offences committed. However, it does require that the court outlines clearly the reasons for the categorisation of such offences. This will serve to underline the seriousness of the offence of murder in the eyes of the public. It will also create greater certainty around murder sentencing.

There are a number of aspects of the Bill that may be a cause for concern. While the minimum custodial periods set out in the Bill in section 5, the most serious category upon conviction, and section 6, serious category upon conviction, will certainly be applicable in some cases, the general trend in the Bill towards longer custodial sentences seems to go against the general recommendations of the Irish Penal Reform Trust, IPRT, which recommends a reduction in the emphasis on prison time. The IPRT is resolutely against mandatory sentencing up to and including the life sentence for murder, and believe it should be repealed. Mandatory sentencing is a blunt instrument which always results in unequal justice. There is scant evidence, nationally or internationally, that mandatory sentencing is effective in reducing crime. Also, a recommended minimum custodial period of 25 years for those convicted of offences falling within section 7 - other cases of murder upon conviction - seems to be severe. While I accept that there does not seem to be a limit placed by the Bill on the court's discretion in such cases, 25 years in prison is above the average amount of time that those given life sentences currently serve in prison, which is 20 years. My worry would be that the unintended consequences of the Bill would be an increase in the prison population or a sharp increase in convictions for manslaughter as a result of guilty pleas in order to avoid minimum custodial periods. The case for mandatory sentencing for manslaughter will be put forth, and the IPRT has also expressed its opposition to this.

Another concerning aspect is that as the framework sets out to determine the length of time a person convicted of a murder will serve in prison before being considered for remission, parole or early release, this goes against the possibility of prisoner rehabilitation or the prisoner having the opportunity to make positive change in their life. The IPRT states that the emphasis in the courts should instead be on non-custodial sanctions, including community service, restorative justice, community drugs courts, intensive mentoring and bail supports which are more cost effective and less damaging to families and communities, with lowering re-offending rates. Although at present those serving time in prison for murder do not take up a sizeable proportion of the prison population, another concern of mine would be that the Bill would serve as a precedent and that minimal custodial periods would be made applicable upon conviction for other crimes, as is the case in other countries.

The introduction of minimum custodial sentences in the US for relatively minor crimes has led to a sharp rise in the prison population. The handing down of longer custodial sentences has been identified as a primary contributor to the rise in the US prison population. This would have the effect of increasing the prison population which has been proven to be negative for society in the long term. Therefore, I would prefer to see the minimum custodial periods in sections 6 and 7 set lower with the court given extended scope to increase the custodial periods up to ten years.

I welcome the Minister of State. I particularly welcome the people in the Gallery and thank them for coming here and for giving their time because it is a very important part of the process. I value their attendance, as do my colleagues. I would particularly like to acknowledge the enormous amount of work my colleague, Senator Marie-Louise O'Donnell, put into this Bill, as did the seconder of it. Senator Marie-Louise O'Donnell spoke passionately about it because she fundamentally believes in it. I am only here a few months but I know she is not one to be jumping up and down on every issue but she is passionate about this and she believes in it.

From time to time, legislation requires amendment. People are entitled to bring about change but to suggest it is all rubbish and all bad news is taking it a bit far. This is a process. We have Committee Stage where we can amend legislation. I would appeal to the Minister of State to be open. I would not like to think he came here with the intention of closing this legislative work down. I would be extremely disappointed in the Government and the Minister of State if that was his intention. I am not going to pre-empt or prejudge; I am going to listen to what the Minister of State has to say after he has listened to what we have to say and, hopefully, from that dialogue something may emerge. That is an important point to be made.

This Minimum Custodial Periods upon Conviction for Murder Bill 2017 is being proposed by Senator Marie-Louise O'Donnell. According to the explanatory memorandum, it provides for a mechanism whereby a court can, upon passing sentence for murder, determine the amount of time that the offender will spend in prison before that person may be deemed eligible for such considerations as remission of sentence, parole or early release. Let us look at the current law on the release of prisoners who receive a life sentence. Under section 2 of the Criminal Justice Act 1990, there is a mandatory life sentence for murder. This means that a court must impose a life sentence in every case without exception where a person is convicted of murder. A life sentence does not necessarily mean that the person will spend the remainder of their life in prison. In fact, the Law Reform Commission has noted that a person convicted of murder may expect to be released before his or her life sentence expires because the Executive has at its disposal two mechanisms by which it may grant early release to a prisoner serving a mandatory life sentence. The first mechanism available to the Executive for the release of a life sentenced prisoner is the power of special remission. This power stems from Article 13.6 of the Constitution and section 23 of the Criminal Justice Act 1951. Special remission means that an offender is no longer subject to punishment for the offence in respect of which he or she was serving a sentence. This power could be described as a modern version of the royal prerogative of mercy. It is rarely used in practice. That is an interesting point. The most frequently used mechanism used for the relief of life sentenced prisoners is temporary release. This power is based on section 2 of the Criminal Justice Act 1960. It is a discretionary power, thus prisoners have no automatic entitlement to it. It was originally intended to be used for the temporary release of prisoners on compassionate grounds or to help integrate prisoners into the community before release. However, it is not always involved in the primary mechanism for early release for all those serving a life sentence. That is really important. For a breach of any condition of release, a prisoner can expect to be recalled into prison.

In 2016, only four life sentenced prisoners were recalled to prison from the community. To substantiate that, I read a response to a parliamentary question on 24 January 2017, where the Tánaiste and Minister for Justice and Equality advised that in 2016, a total of seven life sentenced prisoners were released and the average length of sentence they had served was approximately 22 years.

I note the Law Reform Commission's recommendations, which are important. In 2013, it recommended by a majority that a mandatory life sentence for murder should be retained. It also recommended unanimously that legislation be introduced which would permit a judge, that is, the judge imposing the life sentence for murder, to recommend a minimum period which the person should serve in custody.

I took the time to look at a number of other jurisdictions, and this relates to the Law Reform Commission's recommendations. In England and Wales, where a court imposes a life sentence, it must make an order for a minimum term to be served before the offender may be considered for release by the parole board. In Scotland, a sentencing court must specify a punishment part to be served by the offender to satisfy the requirements of retribution and deterrence. This period may be any number of years or months even if it is likely for the period to exceed a life sentence. In Canada, the criminal code sets out the periods of those sentenced for life imprisonment and it states that prisoners must serve the period before they are eligible for parole depending on all circumstances, and a minimum 25 year period. In New Zealand, offenders serving life sentence are eligible for parole once ten years of imprisonment have been served without exception.

People have different views but the Minister of State should not close the door. Allow this Bill to go to the next Stage and allow the Members, if they are opposed to it, or have genuine alternatives, to put them forward. Let us tease them out, debate them and vote on them. I thank the Minister of State for his time.

I welcome the Minister of the State to the House. When Senator Marie-Louise O'Donnell came to me with this legislation, I was totally opposed to it. Having listened to the debate and the proposals she has made and having looked at the Bill, I do not think I want to close the door on it now. I would agree with other Senators that it is a matter that should be considered. I am not saying I agree with it but it is important that we have a debate on the matter. We have fairly good checks and balances in this country in the area of sentencing and how we deal with criminal prosecutions. The courts and the appeals process have been used very effectively. It is not so many years since the Director of Public Prosecutions did not have a right of appeal in regard to sentences imposed. However, that has changed, which is welcome. There is a right of appeal on both sides on the severity or the leniency of sentences and that ensures there is a level playing field for everyone.

The Bill sets out various ways on how a decision is arrived at, that is, making the final decision about what sentence is appropriate. However, despite all the variations and the options in the Bill, it still sets out in stone certain aspects. It removes the role of the courts in doing that.

In this country we have a clear separation of powers which has worked very well. We should examine the various roles of the different arms of the State and we should not always have the view that because we have done something for the past 50 years we should do the same for the next 50 years, because that may not necessarily be the case.

I welcome the Bill. It is appropriate that we have such a debate. Some of its aspects should be given consideration. We should not close the door fully on the matter. I thank Senator Marie-Louise O'Donnell and all of those involved in bringing forward the Bill. We must remember that we are here to deal with legislation. It is only right that legislation is not the sole preserve of Government Departments or Ministers. We all have a part to play in enacting legislation. I welcome the debate and this issue needs to be examined further over the next few months.

I welcome the Minister of State to the House. I will be brief. I thank Senator Marie-Louise O'Donnell for bringing forward the Bill. I was in my office working on something else and listened very carefully to what she and the Fine Gael spokesperson said about the Bill. While I accept that my party is not in a position to support it, I am conscious of the fact that there is a parole Bill in the Lower House which has been awaiting Committee Stage since 2014. There is a lot of merit in what is contained in this Bill.

As we are all aware, if somebody is charged with causing a death, the charge is either manslaughter or murder. We should first consider the definition of manslaughter and then consider a harder definition of murder.

There has been some reference to relatives of the victims of murder, who are in the Gallery. I would like to join colleagues in welcoming them to the House. While we are debating whether somebody should serve a minimum sentence of seven years or between 25 and 40 years, the victim of murder is serving a sentence of eternity, something we should not forget. I understand that the majority of people are not in favour of the Bill, but there is very little disagreement other than on the minimum sentencing proposal which is the main thrust of the Bill.

Perhaps we could be given an opportunity to examine the matter and possibly amend the Bill, incorporating into it, with Senator Marie-Louise O'Donnell's permission, the definition of manslaughter. There is a significant difference between the sentence for manslaughter and that for murder. If we can reclassify manslaughter and harden the definition of murder, there would be a better case to be made for minimum sentences suggested in the Bill.

I am representing the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, who cannot be here. On my behalf and that of the Minister, I would like to thank Senators Marie-Louise O'Donnell, Craughwell and Humphreys who are co-sponsors of the Bill. I also want to recognise those in the Gallery whose relatives have been the victims of murder.

Murder is the taking of a life in violent circumstances involving a brutal loss of life and tragic lifelong consequences for the family and friends of the victim. Rightly, therefore, murder is regarded under our law as the most serious criminal offence, attracting a mandatory life sentence on conviction. Where a person is convicted of a murder, a court must and does impose a sentence of life imprisonment. A mandatory life sentence lasts for the duration of the offender's life, although offenders are currently eligible for temporary release at the discretion of the Minister for Justice and Equality and on recommendation from the Parole Board.

What the court does not do, but which the Bill purports to do, is determine and impose a minimum period of custody to be served before release can be considered. The minimum periods of custody set down in this Bill are very high, with starting points of 40, 30 and 25 years. Similar provisions in the UK are 30, 25 and 15 years.

There is a perception that persons convicted of murder serve relatively short periods in prison and this was true in the past. However, today a person convicted of murder in Ireland serves an average of 18 years in prison. By way of comparison, in the UK it is 17 years. The current 18 year average in this State compares with an average of just over 7.5 years for releases between 1975 and 1984, just under 12 years for the period between 1984 to 1994, and just under 14 years for the period from 1995 to 2004, since when the average has been steadily climbing.

While a life sentence prisoner might anticipate release from detention at some stage, he or she is likely to serve a lengthy sentence before that occurs. Moreover, and crucially, a person convicted of murder will remain subject to recall at any stage of his or her natural life should he or she commit a further offence or breach a condition of his or her release.

The management of custodial sentences is key in the successful rehabilitation and reintegration of an offender. It can, however, be a challenge to incentivise life sentence prisoners to participate in certain rehabilitative programmes where release is many years away. The substantial increase in the periods of custody proposed in the Bill, together with the disapplication of any form of remission or temporary release under section 1 is, therefore, a matter of concern with respect to the rehabilitation of offenders.

There are also other difficulties with this Bill. The Bill effectively creates a hierarchy of murder, with section 5 concerned with what is termed the most serious category, including murders where the victim was abducted or the victim was subjected to sexual, sadistic, humiliating or degrading conduct. Also covered are persons who hire someone else or are hired to commit murder. The section will also apply to murders with more than one victim and which involve an act of arson, although the Bill is silent as to multiple victims arising from other acts.

The minimum custodial period if convicted for an offence which the court considers to fall under section 5 is 40 years. While there is some judicial discretion to lower or raise the penalty, there is a limit, under section 8 of the Bill, on lowering the minimum period of custody from 40 to 30 years.

Section 6 provides for minimum periods of custody of 30 years where the offence involves the use of a weapon and the court is satisfied that the fear, pain and suffering occasioned on the victim was of a significant, serious and prolonged nature. This section will also apply to the murder of one person by way of arson. Section 8 limits judicial discretion in lowering the penalty to a minimum of 25 years.

There are evidential aspects to sections 5 and 6 which raise concern. For instance, for a particular offence to fall under section 6, the court would have to be satisfied that the fear, pain and suffering occasioned on the victim by the offender was of a significant, serious and prolonged nature. I accept that these sections are simply for the purpose of determining sentence. However, after a jury returns a verdict of guilty of murder, the court must, under this Bill, then begin the exercise of hearing evidence as to the precise nature of the offence and the degree of fear, pain and suffering and whether it was of a significant, serious and prolonged nature. This is not necessarily evidence which would arise or be necessary in trial, the obvious instance being those cases where an offender pleads guilty which does arise, albeit rarely.

How the significance and prolonged nature of the victim’s fear, pain and suffering could be proven is difficult to envisage in all cases. I have similar concerns regarding the reference to humiliating or degrading conduct under section 5. The last thing anyone wants is for decisions on those factors to become a basis for judicial review or appeal. I very much believe that these aspects of the Bill should, at a minimum, be reviewed by practitioners, including the Judiciary.

A further difficulty with the Bill is that it creates an anomaly with respect to the existing offence of murder under section 3 of the Criminal Justice Act 1990, formerly known as capital murder. Under that Act, the murder of a member of An Garda Síochána or a prison officer is subject to a minimum period of imprisonment of 40 years to which remission for good conduct of one quarter applies, effectively creating a minimum sentence of 30 years. As I mentioned, this Bill would appear to specifically exclude the application of remission to the minimum periods of custody.

In effect, this may result in greater penalties being served under the Bill than would be served for the murder of a member of the Garda or prison officer. Given that the latter have been given special provision under statute, it is arguable that the proposed mandatory minimums proposed under the Bill are disproportionate and could be subject to challenge on that ground. This anomaly between the penalties for murder under the Bill with those under the 1990 Act is confirmed by the provision in section 5(6) of the Bill which confirms that its provisions do not replace or supersede the 1990 Act.

Section 7 deals with other cases of murder which do not fall within sections 5 or 6 and sets a minimum period of custody of 25 years, and while judicial discretion to reduce this penalty is not restricted, as it is for sections 5 and 6, the proposed minimum period of custody is nonetheless considerably higher than current periods spent in prison on a life sentence. Over a period of time, that would significantly increase the number of prisoners in prisons and inevitably lead to increased costs. That is not a major issue but it is something our colleagues have raised. However, the more immediate concern is the negative impact that such an extended period of imprisonment would have on the rehabilitation and reintegration of prisoners who would be less incentivised to participate in rehabilitative programmes and more vulnerable to institutionalisation. The successful rehabilitation and reintegration of a prisoner following release from prison must be a central aim of sentencing and penal policy. This Bill does not support that aim. Experience from other jurisdictions also shows that extremely long prison sentences with little prospect of release can lead to more extreme and volatile behaviour in prison, including violence against other prisoners and staff.

I know the sponsors of this Bill have cited the position of the Law Reform Commission, LRC, in support of the provisions in the Bill and that the LRC also recommended that judges may recommend a minimum period to be served in custody prior to consideration for temporary release. While the LRC saw benefit in allowing a court to judge on relative culpability of an offender as a useful guidance for a subsequent decision on the release of an offender, the LRC did not recommend a prescriptive legislative model as proposed in the Bill. Moreover, the LRC recommendation was that a judge may recommend a minimum period of custody but that there would be no obligation to do so.

There are also questions as to the impact of the Bill on the role of the parole board. Currently, a judge imposes a life sentence on a person convicted of murder without specifying a period to be served, the parole board is then responsible for reviewing that sentence and making recommendations as to release and will do so having regard to the nature and gravity of the offence. However, under the Bill the court is required, in determining the period to be served, to consider the nature of the offence and the circumstances of the offender as well as any relevant aggravating or mitigating factors. This is established sentencing practice and in circumstances where a court determines that sentence, taking into account those factors, it is unclear how a period of detention beyond that sentence could be supported and therefore what role, if any, would exist for the parole board, either in its current non-statutory form or as a statutory body as is proposed in a Bill currently before the Dáil.

I also have questions regarding other aspects of the Bill - for instance if section 1 is intended to prohibit any form of remission, it could be interpreted as an inappropriate fettering of the discretion in the President, under Article 13.6 of the Constitution, to pardon or remit any punishment imposed by a court. By way of contrast, when it comes to capital murder under the 1990 Act, that Act only disapplies the remission of sentence provision contained in section 23 of the Criminal Justice Act 1951. In addition to the concerns already outlined, the Bill does not reflect the recommendations arising from more recent reviews such as the Joint Oireachtas Committee on Penal Reform in 2013 and the strategic review of penal policy in 2014.

Of course the Bill also needs to represent the views of a number of stakeholders - in particular the Judiciary, criminal practitioners and those who work with offenders. Great care must be taken in addressing this area of law and consideration should also be given to existing legislative proposals such as those to establish the parole board on a statutory basis. Such a hugely significant change to criminal law should first be the subject of extensive consultation. As I said, murder is the most serious of offences. The impact and consequences are lifelong, as is the effect of the mandatory life sentence which means offenders are subject to recall to prison for the duration of their life. I fully appreciate what the Senators who have sponsored this Bill are seeking to achieve. The family and loved ones of the victim of murder must and do live with the consequences of that horrific crime for the rest of their lives. Current sentence management focuses on the rehabilitation and reintegration of offenders as the most effective means of maintaining safe communities. However, in the Government's view the Bill as its currently stands is excessively punitive and does not accommodate our responsibility to ensure that an offender can, to the greatest extent possible, be safely released into the community.

I have listened carefully to what everyone has said here. I note the passion, integrity and seriousness with which the issue is taken. As you know, a Chathaoirligh, I served for five years as Chair of the justice committee and one of the things we did there was to have a process of legislative scrutiny whereby topics such as this which are so important, detailed and serious were scrutinised carefully by the committee. Members of the public and other interested experts, individuals and bodies could have an input into proposed changes in policy, such as the one before the House. Unfortunately, due to the nature of the Bill as a Private Members' Bill, it was not possible to carry out pre-legislative scrutiny, for example, which is a pity in many ways. With all humility and respect I ask if the House would consider adjourning the debate and inviting the Oireachtas committee to further examine this topic in great detail, taking on board many of the points made by Senators. That would mean the entire policy area could be examined, not just amendments that would arise on Committee Stage. Senator Boyhan made such a point when he asked that the Bill would be examined. I am willing to facilitate that, as is the Government, if colleagues here are supportive of that. I acknowledge that the Oireachtas committee is independent and we can only ask it to carry out the work, but I am sure the members of the committee would be most anxious to take on board the suggestions, ideas and proposals and invite members of the public and others to submit to the committee so that the issues could be examined and the committee could report back to the Houses and the debate could be picked up at a later Stage. In effect, it would just be adjourned today. That is my suggestion at this time, a Chathaoirligh. I am in your hands as to how you wish to proceed.

I thank the Minister of State. The Acting Leader wishes to say something.