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Seanad Éireann debate -
Wednesday, 3 Jul 2019

Vol. 266 No. 11

Criminal Justice (Judicial Discretion) (Amendment) Bill 2019: Second Stage

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

Six years ago the Law Reform Commission explicitly recommended that a law be introduced to allow a court to recommend the length of time a person who received a mandatory life sentence should remain in prison. No law to bring about this change has been introduced since. The objective of my short Bill is to fulfil that recommendation. I accept that the Bill, as drafted, could lend itself to amendment on Committee Stage to ensure the wording will actually deliver on the objective I hope to achieve. More importantly, the families of victims of murder have, rightly, been looking for this to happen for years. They are represented here. The Bill seeks to make a core amendment to the Criminal Justice Act 1990 which, among other things and alongside other legislation, provides for a mandatory life sentence for murder. It will provide certainty in specific cases on when a murderer may potentially be released. It will provide certainty for the family of the victim, the community and the offender.

The House is aware that there is a mandatory life sentence for murder, regardless of the nature or hue of the terrible event, but life does not mean life. It is not a custodial sentence for life or a significant proportion of it. Instead the offender is under licence for life. There is, in fact, a minimum seven-year custodial sentence, at the end of which the Parole Board may assess the murderer's suitability for release and at three-year intervals thereafter. In the late 1970s and 1980s a sentence for murder rarely reached double digits. The average is now 17 or 18 years, with some murderers serving longer and others a shorter sentence. According to figures supplied to the Minister for Justice and Equality in March, there are 348 murderers serving time in jail, all of whom received a mandatory life sentence. On average, they will spend just 17.5 years in jail, which is among the lowest in Europe and the world. In 2001, thanks to information received from Sentencing and Victims Equality, SAVE, there were 139 murderers in jail. Today there are 355, a 75% increase. There is no certainty about their sentences. There is also no certainty for the families of victims, the community or the offender.

Let me say something about the families of victims of murder in the Visitors Gallery. I have the privilege of being a Senator, a patron of Advocates for Victims of Homicide, AdVIC, and a conduit for all other organisations such as SAVE and individuals who are here representing their families and victims of murder. AdVIC has been one of my greatest teachers since I came into the House. We all find teachers here when they speak at committee meetings and tell us the way the world really works. We act or should act as a conduit for them as servants of the people. That is the Seanad's greatest role. I welcome the visitors. These families, their communities and wider society have suffered more than we will ever know. I welcome Mr. John O'Keeffe, non-executive director of AdVIC, because, as a lawyer, forensic psychologist and magistrate, he has taught me how to navigate this journey and about the law.

Everybody believes it will never happen to him or her. It is too ugly, but it has happened to hundreds of people in Ireland and none of us can imagine the horror for the families left behind which they go through every day because of their profound loss as a result of violence and unfair treatment, especially when it comes to providing certainty. The Bill is concerned with murder - purposeful, wilful, horrific murder. The short amendment to the Criminal Justice Act 1990 involves the possibility of introducing certainty by providing for a minimum figure in handing down a mandatory life sentence. This happens in the Scottish system and in a broader sense in England and Wales. The core amendment to the Bill simply states the court may, at its discretion, set - that is the word I have written, but it should be changed to "recommend" - a certain determinate period of time that the person shall spend in prison. Two important points need to be made about this simple amendment, the first of which is an element of judicial discretion will be introduced when a judge imposes the mandatory life sentence for murder. He or she may, on the facts of a particular case, decide that, in his or her opinion, a minimum period should be served within the life tariff. However, the Bill has been drafted in order that he or she may also decide not to exercise such discretion and simply hand down the mandatory life sentence without stipulating a minimum tariff.

AdVIC and I, as its patron, believe judicial discretion remains critical in criminal justice scenarios. No two murderers are the same. The Bill seeks to allow the Judiciary to reflect this lack of homogeneity among murderers while, in respect of particular cases, giving all parties the certainty we have lacked to date, which has been appalling.

As we sit here today, our colleagues in the Lower House are debating the Parole Bill 2016. I am delighted that this has engendered activity. One of the features of the Bill is its proposal that the minimum period that must be served before the Parole Board may consider release should increase from seven years to 12. The Seanad should be delighted to support that proposal. If the Parole Bill is progressed, it will dovetail with and complement my short Bill. I ask the Minister of State, Deputy Stanton, to consider my Bill in the context of the Parole Bill which proposes on page 18 in respect of "eligibility" that when a sentencing judge is imposing sentence on a person, that judge may impose a specified period during which that person shall not be eligible for parole. That comes some way towards what I propose in my Bill. I am looking for an amendment also as the regime is currently too general. Once the Bill is progressed, I support also the development of judicial guidelines in this jurisdiction in respect of a range of offences up to and including murder. While we have no doubt that our own common law will organically develop such guidelines, this will subsequently become additive for the Judiciary when judges are considering whether to apply a determined minimum period to be served for murder before parole may be considered.

To the eternal credit of everyone sitting in the Public Gallery today, they, more than most, understand that justice needs to be balanced with the rights of both victim and offender. My Bill plugs a critical legal and moral gap in legislation currently whereby both scales of justice may be properly balanced. No longer will the disgrace continue that in all cases, the family of the victim of a murderer will have to beg the system not to release the person who murdered their husband, wife, brother, sister, uncle or aunt after a mere seven or even 12 years. It is abhorrent and an unspeakable burden placed by the system on the shoulders of men, women and children whose hearts have already been crushed. It cannot go on. The public as I sound it out will not allow it to do so. My Bill proposes that individual judges should have the discretion to provide individual families with certainty for a more significant period than has been the case to date. While expressing concern about some aspects of mandatory minimum sentencing, including recently, the highest courts in the land have consistently upheld the constitutionality of a mandatory life sentence for murder, which offence is confirmed in the words of a former Chief Justice to be "so abhorrent and offensive to society that it merits a mandatory life sentence".

It has been more than two decades since we were promised that the Parole Board established in 2001 would be placed on a statutory footing. As I said earlier, the Parole Bill initiated by Deputy Jim O'Callaghan is before the Dáil for debate today. However, it is unclear whether it will be enacted in the lifetime of the current Oireachtas. I seek clarity on that in respect of my amendment Bill. We need action now. It is not good enough for the families of victims to go through the harrowing ordeal of a court trial and to see a murderer put behind bars for life only to learn that he - unfortunately it is usually a "he" - or she was released after less than 20 years on foot of a decision which vests entirely with the Minister of the day. Many of us believe, including the Law Reform Commission and the Government's own penal review working group, that the recommendations of the trial judge who listened to all the evidence of a particular murder would constitute fairer decisions than may be delivered by either the Parole Board or the Minister of the day as to whether a murderer should be released from custody.

My Bill is a simple one, the aim of which is to protect the families of victims who feel justice is not served for their loved ones if a murderer may walk the streets after 18 years. I hope to work with the Minister of State, Deputy Stanton, on this. I have learned as a Member of the House that people must communicate, listen, learn and come together to serve the common good and to get the law right. I ask that we have some equality in the law here. I ask also that my amendments to the Parole Bill will be taken. We have ceased in Ireland to understand the profundity of what happens when a life is taken wilfully and purposefully. We do not understand any longer what that means. I am a great believer in equality in the law. There are reams of legislation on offenders. We are running around with it and putting more committees in place in that regard. What about the offended persons sitting here, however? We are very quick in Ireland to give women life sentences for having babies outside marriage but when it comes to murderers, it is an entirely different story. We have lost the sense of what violence means. We use violence every day and communicate through violence. We are entertained by it. It is part of the social media discourse, as anyone who works in the public eye will know. We have become immune to what the taking of a life means. It means the loss of hope, future, imagination and joy, including for those who are left behind. They are murdered in their spirit, imagination and hope every day. We have become a society with no sense of shame. We are aghast at the horror of murder, but then we look away and move on.

A judge who has sat through an entire trial should be the one to recommend how long a murderer must remain in custody. That judge should determine when a murderer will be fit for parole by reference to the nature of the crime. It is not a matter where one size fits all. Who decided that the mark of mandatory sentencing or of a progressive, liberal state was telling people their lives were worth 17 years? I believe in rehabilitation and that people can atone for their sins. Before that happens, however, a price must be paid for their crimes. A price is being paid every day by those sitting in the Gallery and I demand equality for them. I will leave the matter to the Minister of State now. I am interested to hear what he has to say, in particular on the Parole Board and the issue I have pointed out. I might be able to feed into it and find some recourse for those who have been left without their loved ones forever.

I neglected at the outset to welcome the Minister of State at the Department of Justice and Equality, Deputy David Stanton, to the House. He is very welcome. Senator Norris has eight minutes for his contribution.

I am honoured to have been asked by my friend and colleague, Senator Marie-Louise O'Donnell, to second this important Bill. Senator Marie-Louise O'Donnell has a genius for ferreting out issues of real public significance and relevance and she has certainly done so on this occasion. We live in an increasingly violent society and what is happening now is astonishing. When I was at school, two old ladies were attacked in a sweet shop in Harcourt Street and bashed over the head with an iron bar. It was front-page news for weeks as the newspapers followed the progress in hospital of the more seriously injured woman. Now a murder is on the back page. We are so used to it that we have become immune to the shock and horror of violent crime. A great deal of it has to do with drugs, in particular the gangland shootings, albeit I acknowledge that is not why the people in the Gallery are here. I pay tribute to them. I cannot believe what they are going through as a result of having a loved one taken away. Not only are there drugs in society, there are videos which glorify violence. I cannot quantify the impact that has on young people but I am certain it has some.

I want to talk a little about the families as the victim is beyond all this. The person who is murdered is out of the equation. In this kind of situation, one has a trial and a judge, and there should be three elements to the sentencing. The first is retribution or the paying of a price for doing wrong.

Then there is example, showing that such a crime is abhorred by society and is not a regular feature of decent life. Then there is, of course, public safety, but most particularly the safety of the relatives of the victim. I have heard on the wireless many relatives speaking about the tragic circumstances which they have had to confront. Among the issues they discuss, they often say they were never told when the man who murdered their son, their brother or their wife was released on parole and that they could bump into them on the street. That is another issue which should be examined. There should be a statutory obligation on the prison authorities, or whoever is responsible, to let the families of a victim know that the person found guilty will be released on parole.

Every victim’s family has the same experience whereby the perpetrator will get out after seven years but they have to serve a sentence for the rest of their lives. It is a life sentence for the families of the victims. For the murderer, one has a situation where they can be out after seven years. I understand the term has increased recently and it is now up to an average of 17 years.

This Bill seeks to give discretion to judges. It is not imposing or forcing anything on them. It is simply providing that, in circumstances where a judge is particularly appalled by the nature of the crime, he or she can impose a specific number of years. Surely to goodness the Government will welcome this. I always heard Fine Gael was the party of law and order. Here is Senator Marie-Louise O'Donnell placing them in a situation where they can back up the whole concept of law and order. The Bill does not deal with other elements such as fatal assault or manslaughter. It is about murder. It just gives discretion. It allows a judge to impose a specific number of years.

In Ireland, life imprisonment does not mean life. This is the nonsense of it. A mandatory life sentence does not mean life. What is the point in calling it a mandatory life sentence if it does not mean life because the perpetrator is out after 17 years or less? In the parole hearings, there is an emphasis placed on whether the perpetrator of the crime made an apology. It is fairly easy to make an apology, particularly if one knows it is going to reduce one’s sentence. We often hear judges saying that, among the mitigating factors taken into account, is the fact that the perpetrator said sorry. I do not believe that is enough. There is not enough concentration on the impact of a violent act upon the families concerned.

We need to show moral disapproval of horrific acts of violence. We should not accept that this is a normal part of life. There is a need to speak about the victims. I am very glad that AdVIC is involved. I pay tribute to the distinguished legal authority, John O'Keeffe, who has advised Senator Marie-Louise O’Donnell on this matter.

We are just rubber-stamping mandatory life sentences. They do not really mean what they are supposed to. Has the Minister thought of discussing this issue with judges? Is there a relationship of that kind between Ministers and judges? I know there is a separation of powers but it would be interesting to take the view of judges. What do judges think about the situation? I would imagine they would be strongly in favour of the kind of reform Senator Marie-Louise O'Donnell is introducing.

There is a zeitgeist about this matter. People in the general public, not just the families of victims, are concerned about this matter. It is instructive that, acting on behalf of Fianna Fáil, Deputy O'Callaghan has introduced a Parole Bill that will seek to raise the number of years before parole is considered from seven to 12. I believe this is quite reasonable. Taken in concert with this Bill, it would be a move forward for society.

Senator Marie-Louise O'Donnell has shown herself to be very pliant in this regard. She has said quite openly that her Bill may not be the world’s most perfect legislation and she is open to amendment from the Government side. This shows pliability which makes the Bill more acceptable. It should be accepted as a working document on which the Seanad can work and improve.

At least, discussion has opened this evening. I am grateful to Senator Marie-Louise O'Donnell for introducing this important Bill. I want to express my sympathy to those families left behind. The victim is beyond all this and our compassion. I cannot begin to imagine what it must be like to live with the unnecessary loss of somebody who was loved and cherished in the bosom of the family and taken away by a random act of thuggish violence.


I know this is an emotive issue but the rules of the House prohibit applause in the Gallery. Earlier, because the Bill's proposer, Senator Marie-Louise O'Donnell, made an emotional speech, I allowed some latitude concerning applause in the Gallery. I cannot do so from now on. I ask those in the Gallery to desist from applauding.

I welcome the Minister of State, Deputy Stanton, to the Chamber. I thank Senator Marie-Louise O’Donnell for bringing forward this Bill. I also thank her for her advocacy on an issue which is highly sensitive but important. I share her sentiments entirely on this matter. I hope the Government will not oppose the Bill tonight. Senator Marie-Louise O'Donnell has indicated she will work with the Government on incorporating this in the Parole Bill.

When somebody gets a life sentence after a murder trial, nobody thinks it is not life. There are people, however, who know it does not mean life. A good number of them are here in the Gallery tonight. I welcome the families of victims and AdVIC, the advocacy group, which has called for this particular issue to be addressed. It offends the natural sensibilities of people that if one intentionally takes a life, a life sentence does not mean life. In other areas of sentencing, the Judiciary has a lot more scope for discretion. In the case of murder, a life sentence is imposed. The Parole Board can hear a case for parole. I accept in many cases it does not let people out after seven years. However, every year the trauma of the whole idea that a perpetrator could be released is visited upon their victim’s family. It does not make sense because the person whose life was taken is gone forever.

I do not believe the current system is right. I have spoken on it before. Most people agree that it offends our innate sense of justice. Senator Marie-Louise O’Donnell’s Bill has merit in its recognition of the Parole Board as having a legitimate role. A prisoner gets to a point where he or she is eligible for parole. Matters are examined such as the likelihood to re-offend, to what extent there has been remorse and the prisoner has learned. In our more advanced society, we like to think that people learn from their mistakes.

There is a very distinct issue when the hammer of the law comes down that we have to be very clear that justice is being delivered, in particular in the sentence. This issue should be dealt with in the realm of the courts of law where we deliver justice and where we have faith in the judge's discretion, although we may not always agree with him or her. The judge has the training and professionalism, has been listening to everything, and is best placed to offer what a minimum sentence might be in the situation, and then leave it to the discretion of the parole board. It is a bit like the reverse of the significant discretion that is being handed to a parole board that makes this decision in a certain amount of privacy. We know that murder trials are conducted in a public court and everybody can hear what is going on. The proceedings can be observed. We do not benefit from that when a decision goes before a parole board. I think this is a power that we should give to the Judiciary to address the shortcomings in the law as it is.

While I welcome the Parole Bill, I would like to think that what Senator Marie-Louise O'Donnell is proposing could be incorporated. I am a Government party Senator, and while I cannot tell her how that will go, that is my view on the situation. It is the least solace we can give to people who have to deal with this situation. When a judge is making his or her decision, he or she hears all sorts of information, such as the person's background, the psychology of it and so on that blends to the point that can explain, if there is ever an explanation for these things, where we got to and where we are. We have to remove ourselves from that and say that a life has been taken, that it means something more substantial than seven years' imprisonment at a minimum, after which it goes to a system that we cannot monitor. We cannot monitor parole boards. Again I do not take from anybody sitting on a parole board but it offends our natural sense of justice and I would like to see something done about it. I hope that we can move forward from here.

I commend people who have stuck with this over the years. Progress can be slow at times in terms of legislation but it is understood what this is about and what is being requested. I think that is reasonable.

I wish to share my time with Senator Murnane O'Connor.

I welcome those in the Visitors Gallery. The most important thing to bear in mind is that there are families left behind. They are heartbroken. We really appreciate their presence to hear this debate. I know it is a difficult time for all those present. Every day is difficult when one loses a loved one in the circumstances in which they have experienced.

I commend Senator Marie-Louise O'Donnell on the work she has put into the Bill. She has spoken with great passion and we know that she is very passionate about the victims of violent crime. I thank her for the work she has put into the Bill. It is worth pointing out that many of the victims are women and their children, and it is very important that these people are put centre stage today and that we remember them and their lives and the families who are left behind to pick up the pieces and wonder how they will continue with their lives. It is very important that we put the victims of crime and their relatives at the centre of the sentencing process, which has not been the case many times in the past.

Colleagues have spoken so far about the Parole Bill 2016 that Fianna Fáil is bringing through the Dáil at present and is nearing completion. This Bill would put the parole board on a statutory footing and would increase the effective minimum life sentence from seven years to 12, which is a very good element. Senator Norris said it was very reasonable. We believe this would be a better way of coming to the position that Senator O'Donnell wants us to come to, that is, that people cannot be discharged after a very short period after taking somebody's life. That is the main sentiment today.

The Parole Bill will require the decision to be made in public and require that information available to members of the public and their families. The parole board will have to explain to the public and to the victim's families how it came to this decision, which is not the case at present. It also obliges the parole board to take account of the position of the victims and their families, and I do not think that would necessarily be the case with this particular Bill. There could be some unintended consequences if the power were to be put directly into a judge's hands to fix a minimum sentence, because he or she may fix a very low sentence and that might be the sentence served.

I echo Senator O'Donnell's sentiments when she asked the Minister to confirm whether the Parole Bill 2016 will be enacted in the lifetime of this Government. I would like to hear the answer to that question. I would appreciate any other clarifications in respect of protecting victims and their families.

I agree with the previous speakers. I say well done to Senator Marie-Louise O'Donnell on her hard work because I know how passionate she is about this, like we all are.

This is all about the families of the victims. It is so important that we work for them and make sure we get them the justice they deserve. Our spokesperson, Deputy O'Callaghan, has been working on the Parole Bill. It is critical and urgent that we get the Bill through as quickly as possible. It is so important for the families. I can only ask that the Minister of State would give a commitment to Deputy Jim O'Callaghan and the other parties that we would get this Bill through before the next session. I know how passionate the Minister of State is.

I have been working with my friend, Ms Kathleen Chada, who is in the Gallery. I know how important this Bill is to them. When families have been affected, like many of the families I would know, because I have been to some of the meetings and I have met groups that have worked so hard on this, it is good to highlight this issue and to give Senator O'Donnell our support. All of us working together need to deliver on this for the families of the victims. I give my full support to this. It is one of the most important Bills that will ever go through the Oireachtas.

Cuirim fáilte roimh an Aire Stáit, an Teachta Stanton, chuig an Seanad anocht don phlé tábhachtach seo. Molaim iad siúd atá ag cur an Bhille seo os ár gcomhair anocht fosta. I commend the Senators on bringing this legislation before us this evening. I thank the Minister of State for his presence and also acknowledge the visitors in the Public Gallery. I use that word very consciously and thoughtfully because I do not want to welcome any of them in the sense that many of them do not want to be here and never would have wanted to have been here to be making this case. It is the last place they want to be and the last situation they want to find themselves in, but I commend their diligence in working with Senator O'Donnell and others to ensure that not just this legislation finds its way before us, which it is to be hoped we will be able to advance, as has been said, but that we start that political and societal conversation and have it front and centre in how we deal with this issue as a people and, certainly in this instance, as legislators.

The Bill seeks to amend the Criminal Justice Act 1990 which abolished the death penalty and also dealt with the charges of murder and attempted murder. While section 2 of the Bill is very short, it seeks to add to the Act, as has been outlined. There is certainly a point to be made that when life sentences are handed down to a person who is convicted of a crime, what exactly a life sentence means lacks a level of certainty or clarity for victims and their families. This is coupled with the uncertainty and trauma that is no doubt associated with parole hearings, their scheduling and the potential of convicted persons to be released more quickly than one might have expected.

More broadly on the topic of fair and more consistent sentencing, it is welcome that tomorrow the Government will bring forward and hope to pass the Judicial Council Bill. We, in Sinn Féin, have long advocated for sentencing guidelines. We are delighted that the Judicial Council Bill will see a council established to look at that issue in particular, something that we secured from the Minister for Justice and Equality. Sentencing guidelines are something that have long been sought by groups that represent the victims of crime and sexual violence organisations such as the Dublin Rape Crisis Centre and Rape Crisis Network. I believe tomorrow's passing of the relevant Bill to be a landmark moment for the justice system in this State. I expect that, ultimately, the vast majority of criminal cases in this State will see a judge having to take into account sentencing guidelines for that offence, which is significant. Far too often we have seen victims feeling severely wronged as the perpetrators of the crime have been faced with inadequate and inappropriate sentencing. Everybody agrees that the severity of a sentence must match the severity of the crime. Currently, there are too many instances where this does not happen. The vast majority of judges balance the considerations well and I believe that sentencing guidelines will tackle the issue of unsuitable sentences being handed down. We believe the public deserves to know that offenders will receive a sentence that fits the crime and that heinous crimes will be met with stiff sentences. The public also deserves to know that there is a basis for calculating a sentence.

It has been a long-standing position of the Government that the parole process should be placed on a statutory footing. The Government also seeks to do just that this week with the Parole Bill 2016 being heavily amended by the Government in the Dáil this evening. The parole system, as it currently operates, is entirely at the discretion of the Minister for Justice and Equality. In making the decision to grant or refuse parole, the Minister receives advice from the Parole Board, which is a non-statutory body. The system of parole is very unsatisfactory because it is not based on statute and left in the hands of the Minister of the day, which we believe most people will accept is not a sufficient or sustainable way to deal with parole applications. As I had alluded to previously, it is important that the victims of crime and the voices of their families do not get lost in any discussion on parole and that is why tonight's debate is so important. While a balancing of rights must be considered, it is integral to the democratic and judicial process that a substantial conversation is had on the topic of parole and sentencing more broadly. As has been mentioned, representatives of AdVIC are here tonight. I commend the work that AdVIC has done on this issue and for bringing this conversation to the fore, alongside Senator Marie-Louise O'Donnell.

We will be supporting the Bill proceeding to later Stages. The Bill, as has been conceded and acknowledged not least by the proposer, will require further scrutiny and examination and, potentially, amendment as it moves ahead. As has been said by the proposer, this Seanad works best when it works together. I think there is a general consensus that we should acknowledge the reality of the situation for victims and their families, and the trauma and limbo in which they find themselves. There is the ethical issue, which has been made very well here tonight. To conclude, I commend Senator Marie-Louise O'Donnell for proposing the Bill and Senator Norris for seconding the Bill thus bringing this discussion to the fore.

I want to share equal time with my colleague, Senator McDowell, on this important question, if that is okay.

First and foremost there are members of the public and AdVIC sitting in the Gallery today. They are the only people in Ireland who get a life sentence because every day of their lives they get up and think of the horrible day or night when there was a knock on the door or a doorbell rang and two policemen were on their doorsteps to deliver news nobody wants to hear. I offer my deepest sympathy to them. I do not know how they live every day because I know every day they wish they could turn the clock back just one minute.

My colleague, Senator Marie-Louise O'Donnell, and John O'Keeffe have put together the most excellent podcast that explains what it is they are trying to achieve here. I compliment Marie-Louise. She has driven this issue for quite some time and come at it from many different angles to try to get the message across on what she is trying to do. I commend what she is doing. It is really wonderful work and part of the work that we are elected to do in this House. I thank her for her time, efforts and perseverance in this matter. AdVIC is lucky to have somebody of her calibre on its side.

The word "murder" conjures up absolute horror in me. Earlier Senator Norris spoke about a woman being beaten up. I recall as a child hearing about a murder and it was spoken about for the year.

Murder was so unusual at that time. Today, we live in a society where every now and then we hear of a gangland murder and we say, "Well, that is no harm as another one has been taken out by each other." We have become immune to such happenings but even gangland people have mothers, fathers, sisters, brothers, family, children and relatives. Nobody deserves to die in such a violent way.

In the recent past we heard about a single punch murder that occurred outside a disco or bar. We hear about violent gangs, who are young educated people, kicking people to death outside nightclubs. This is murder. Recently I was on a radio programme with the former governor of Mountjoy Prison and he wondered why somebody would go out at night with a knife in his or her pocket. Who goes out with a knife in one's pocket? For what reason would one go out with a knife in one's pocket other than to commit a crime? When one commits that crime one destroys two families - the family of the victim and one's own family. One's own family will recover and can visit and contact a person in prison every day of the week if they so choose. Sadly, the family of the murdered have no contact. In many cases we now see cold cases being dragged up. These are families who have lived between 20 and 25 years knowing that their loved one was murdered and now the case has been re-opened. Recently we heard that a man in his 70s was arrested for a murder 30 years after the event. I cannot begin to imagine what the families of victims feel.

Today's Bill is simple. The Senator has offered to work with the Minister on it. She has taken every step to leave as much discretion as she possibly can. I think 12 years for the first parole hearing is a very short period.

I shall leave enough time for my colleague, Senator McDowell, to speak. I am desperately sorry that the Minister of State is sitting here. The fact that he is sitting here is testament to the fact that we need a solution for these people and I sincerely hope that the Government will work with Senator Marie-Louise O'Donnell to bring about a solution.

I, too, congratulate Senator Marie-Louise O'Donnell and her fellow Senators for bringing forward this Bill. I acknowledge the presence in the Chamber, in the Public Gallery, of members of AdVIC and recognise the great work that the organisation has been doing and does. I also recognise the Minister of State's presence. I also want to make the point that this is a subject on which there is a very considerable amount of public feeling. I support giving this Bill a Second Reading.

Article 13.6 of the Constitution vests in the President the power of pardon, commutation and remission. As we know, in our constitutional framework that power is exerciseable at the discretion of the Executive. The President acts on the advice of the Executive. I have been a Minister for justice but I am not as clear as most people that it is a good idea to take away from the Minister for justice the right of determining, in the last analysis, the length of sentences but that is not to dispute what Senator Marie-Louise O'Donnell is talking about, which is minimum advisory terms coming from the Judiciary. We tend to consider that members of the Judiciary are the receptacles of all wisdom on parole matters. By putting the Parole Board on a statutory basis, I want to sound the following warning.

If that happens, it becomes justiciable. This decision or that decision can be judicially reviewed. One will find that the meanings of remission, commutation and the rest of it gradually will transfer from the Executive to the Judiciary. We may find that is not a really good idea.

Consider the circumstances whereby two people are sentenced to life imprisonment for murder. If a judge recommends a minimum of a 14-year sentence in one case and a minimum of a 20-year sentence in another, people would ask if one victim's life was worth more than another's.

As the Constitution talks about the Christian nature of the State, there is also the question of mercy. Except in the most extreme cases, we must hold out the prospect of mercy even for those who commit the crime of murder. There must be some element of that.

In a situation in which two people go into prison in the same year for roughly similar crimes, the people in the best position to decide whether one of them should get out after 18 years, 24 years, 15 years, or 12 years, whatever it may be, are those in whose detentive power they stand. They can see whether a person is going to be a danger to society, whether he or she should be given mercy and if he or she has reconstructed his or her moral values so as to be worthy of release at some stage.

I want to be practical about this. When I was made Minister for Justice, I was confronted with a file, shortly after my appointment, proposing the release of a woman prisoner in the following circumstance. She had been convicted of murder, along with another woman prisoner. They had shared a cell in a prison prior to committing a murder and both had agreed that they would, if released, murder a woman - it did not matter what woman - from another gang. They carried out this murder. It was being proposed to me that I should release her after, I think, four and a half or five years. The reason given was that the other woman, who was older than her and had concocted this plan with her, had already been let out after six or seven years. This House must remember the point here. As a result of that, I brought in a directive to the parole board that nobody convicted of murder was to be released, in any circumstance, under 12 years. The period of imprisonment was to be a minimum of 12 to 15 years where the murder was in family circumstances. Nobody who had engaged in other forms of murder should be released unless they had served 15 years. As a result, the terms served have doubled in average length since I was Minister.

My point is that we must be honest in this House. If the number of people referred to by Senator Marie-Louise O'Donnell as serving life sentences are to be accommodated, unless there is a radical transformation in our social values, what happens in our streets and all the rest of it, we will need extra prison spaces to accommodate all these people. I do not want the same people who say they are in favour of Senator Marie-Louise O'Donnell's Bill to say they do not want any more prisons built. Let us be honest, there cannot be one without the other.

As per today's Order of Business, debate on this matter must conclude at 6.34 p.m. Senator Bacik is yet to speak and is entitled to eight minutes if she wishes to take them. Senator Boyhan is also indicating he wishes to speak and the Minister is yet to speak. We are not going to have time to fit everything in and I wanted to indicate that because I must adjourn at 6.34 p.m.

I note the Acting Chairman's comments about time.

I am not putting pressure on Senator Bacik. She is entitled to eight minutes. I must, however, indicate that I will adjourn the matter.

I am conscious that, even if I was to finish within one or two minutes, it would be fair to say that we would not have the time to accommodate everyone who wishes to speak, to allow the Minister to respond and then to hear Senator Marie-Louise O'Donnell's important response. The debate will be adjourning at 6.34 p.m. and I hope we will come back, in early course, to continue this important debate.

I welcome the Minister of State, Deputy Stanton, to the House. I also welcome the opportunity to debate this important Bill and commend Senator O'Donnell on her initiative in bringing it forward and giving us the opportunity to debate sentencing and specifically sentencing for murder.

I also welcome all those present in the Public Gallery, particularly those from AdVIC. I have had the pleasure of working with representatives of AdVIC over many years. A long time ago, I worked with members of AdVIC in seeking to reform the law in a number of important respects for families of those who have tragically died through homicide. I wish, as Senator Norris and others have done, to express my sympathies to them all on their tragic losses and commend them on continuing to work and provide advocacy for families who have lost loved ones in this way.

Some important reforms that AdVIC has fought for and succeeded on that must be noted include reform of the law on victim impact statements to ensure that the families of homicide victims have the right to give a victim impact statement in court. That had grown up through practice but is now underpinned by statute.

A reform on which I worked with AdVIC many years ago was to ensure reform of the defence of provocation so that where a defendant in a murder trial sought to impugn the character of the deceased through raising the defence of provocation, there would be protection for the deceased. We did that through section 33 of the Criminal Procedure Act 2010 which provides that permission must be sought where the character of the deceased is being impugned and the accused, in such a scenario, potentially loses their shield; in other words, loses protection against having their own character and prior convictions brought into the case.

I say all this to illustrate what has been done already for victims of homicide and their families and that is important to note.

Like Senator McDowell and others, I would support this Bill passing Second Stage. I understand we will not have that opportunity to make that final decision but I also understand we are having this debate in a context where the Parole Bill 2016 is going through the Dáil this week and will come before the Seanad next week. The Seanad has also recently passed the Judicial Council Bill to make the important reform to provide for sentencing guidelines. Like others, I have always argued for sentencing guidelines to be put in place and that it is very important to provide a structured framework within which judges may exercise discretion. As Senator O'Donnell has said, it is important that we exercise judicial discretion in sentencing. I do not agree with mandatory sentencing and, indeed, we need to open the debate about whether murder, or any other offence, should attract a mandatory sentence at all.

I know Senator Marie-Louise O'Donnell's Bill has a more modest proposal to provide for judges to set out minimum terms within a mandatory framework. I wonder should we instead be looking at reform of the mandatory framework altogether. I am very conscious of the cases of Lynch v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General and Whelan v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General and the subsequent case before the European Court of Human Rights, which the applicants lost in 2014. That court ruled that the granting of temporary release did not terminate a life sentence. Of course, we know that people sentenced to murder are released only on licence.

I am also cognisant of the established rule enshrined in Article 13.6 of the Constitution, as Senator McDowell has said, whereby the Executive has the power to remit sentences. We have some very established rules around early release - not only the Executive power to commute or remit any sentence but also provision for remission under the prison rules and the power of temporary release. I do not need to tell the Minister of State, who chaired the justice committee in preparation of its report on penal reform in 2013, that, as we recommended at that time, there is a requirement that we reform sentencing practice and, in particular, of early release or what we, at that time, called backdoor strategies.

In 2013 the sub-committee on penal reform, whose report was adopted by the full Joint Committee on Justice, Defence and Equality, recommended five specific reforms of sentencing. The Minister will recall that among those was the recommendation that we seek to reduce the number of people in prison, recognising that far too many people are being sent to prison for very short terms for minor non-violent offences. I know this is somewhat off the point because we are today discussing the most serious offence, murder, and the sentence for it. When we are debating sentencing strategy more generally and looking at the number of prisoners, it is worth remembering that the majority of people being sent to prison in Ireland are sent for short sentences for non-violent and minor offences. If we do not have time to rehabilitate people in prison, what is the point? Why do we not look at alternatives? Why do we not genuinely see prison as a sanction of last resort, as the sub-committee recommended in 2013? That should be our overarching strategy in sentencing.

I support Senator Marie-Louise O'Donnell's proposal that we look at sentencing for murder more broadly. I support more overarching reform. The Senator has approached this in the best tradition of the Seanad, which is to say by looking to compromise, saying that she is willing to accept amendments, and wishing to work with the Government and those of us who have a long-standing interest in penal reform and sentencing to try to achieve positive reform for us all, particularly victims of crime and their families.

Senator Boyhan is entitled to eight minutes but I can only give him three.

I will allow the Minister to respond as he is here.

There are other people indicating so that is not possible. The Senator will be able to use the rest of his time when this debate is resumed.

I am prepared to forgo my time.

The Senator wishes to forgo his time. I call on Senator Mullen. He has three minutes.

Am I to understand that this debate will resume at a later point?

Yes. The Senator will be in possession when it does.

Okay. I also wish to speak in favour of the Bill and to commend our distinguished colleague, Senator Marie-Louise O'Donnell, for sponsoring it in the Seanad. I also commend, as others have done, AdVIC, which raises issues related to adequate and consistent sentencing and other issues that affect victims of crime. Senator Marie-Louise O'Donnell does a lot of work with the group and they have worked together on this Bill.

There have been a number of positive advances for victims of crime and their families in recent years. These include the victims' rights directive which was transposed into Irish law by an Act of the Oireachtas in 2017. This sets baseline rudimentary rights and entitlements owed to victims and their families. Another example is the specific facilities for victims and their families in the Criminal Courts of Justice on Parkgate Street. They are no longer forced to mingle with the families of the accused. In spite of such advances, however, we continue to hear horror stories, year in, year out, about how victims and their families face ongoing trauma at the hands of the justice system.

These stories have a few common threads. They often involve: crimes being committed by individuals on bail; serious criminals, including murderers, getting day release; those convicted of very serious offences being released after what seem to be short sentences, often without the knowledge of victims or their families; and highly questionable conduct by agents of the State within the criminal justice system. Perhaps most reprehensible is the spectacle of the families of murder victims being forced to effectively campaign for the killer of their loved one to remain in prison and to serve an adequate sentence.

There have been too many specific cases to mention them all here today. Perhaps the most shocking and egregious example in recent years was that of Shane Farrell, the victim of a hit and run murder in County Monaghan in 2011 committed by a gentleman who had 42 previous convictions who was out on bail at the time. There have been very serious suggestions of wrongdoing by gardaí and officials in the Courts Service in that case. The Seanad unanimously passed a motion calling for a commission of inquiry into this case. A scoping inquiry into the matter being undertaken by Judge Gerard Haughton is ongoing. I personally believe that the case for such a commission of inquiry is unanswerable. That is just one case in which a family has been traumatised all over again at the hands of the criminal justice system. This Bill will address at least one of the many problems that are faced in that it seeks to ensure that those convicted serve a minimum sentence, to be recommended by the trial judge at sentencing.

The Bill amends the Criminal Justice Act 1990, section 1 of which is significant because it abolished the death penalty for any offence in Ireland. That formally removed the concept of an eye for an eye from our criminal justice code. No human being should ever be deprived of his or her life for any reason whatsoever, no matter how heinous his or her crime. The abolition of this harsh penalty involved a quid pro quo, or at least it should have. If the ultimate penalty is no longer available in law, surely it is to be expected that the tariff for the most serious crime, murder, should reflect its sheer gravity. That would bring some kind of closure for victims' families, to the extent that such a thing is ever possible in such circumstances.

I apologise to the Senator. When we resume this debate he will be in possession. He will have exactly five minutes. I will ensure that happens.

I thank the Acting Chairman. I commend Senator Marie-Louise O'Donnell.

Debate adjourned.

When is it proposed to sit again?

Tomorrow morning at 10.30 a.m.

The Seanad adjourned at 6.35 p.m. until 10.30 a.m. on Thursday, 4 July 2019.