Criminal Justice (Amendment) Bill 2021: Committee Stage

Section 1 agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."

It is not agreed. I was unfortunately not able to participate in the Second Stage debate on the Bill. I would have liked to have said a few words about its general principle. I will take this opportunity on the section to make a few remarks about the Bill.

First, in light of the judgment of the Supreme Court in Wayne Ellis v. the Minister for Justice and Equality, I believe the present Government and the present Attorney General have no option but to introduce legislation along these lines. Therefore, I make no criticism whatsoever of the Department of Justice or the Government for sponsoring this legislation.

Second, the judgment of Ms Justice Finlay Geoghegan in the Supreme Court on 15 May 2019 broke new ground insofar as it effectively said the Oireachtas, in determining by statute penalties that can be imposed for offences, may not provide for penalties - or mandatory penalties at any rate - for second and subsequent offenders that are greater than those for first offences. I wish to put on the record a couple of points in that regard.

When the Criminal Justice Act 2006 amended section 27A of the Firearms Act 1964, it provided as follows: "It is an offence for a person to possess or control a firearm or ammunition in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose." In other words, it is an offence to have a weapon for an unlawful purpose unless one has a lawful purpose, which is obvious. That section continues:

A person guilty of an offence under this section is liable ... on indictment—

(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

This is possession of a firearm with an intent to commit a serious offence. Section 27A(3) states: "The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts ..., the Offences against the State Acts ... or the Criminal Justice (Terrorist Offences) Act 2005." Thus far there is no problem with that. In imposing a sentence up to a maximum, the court may have regard to the fact that the person has previously committed a fairly serious firearms offence. Section 27A(4) states: "Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person." That is simple too. It is a minimum tariff of five years for all offenders. However, following amendments made by the Criminal Justice Act 2007, the Act went on to state, in section 27A(4A), "The purpose of subsections (5) and (6) of this section is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (except a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 10 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so." I was the Minister at the time of the drafting of that legislation, and that section was crafted in close consultation with the then Attorney General, Rory Brady SC. It provided that the minimum sentence for a repeat offender was to apply unless, having regard to the exceptional circumstances of the offence, or specific circumstances relating to the offence or the person convicted of it, it would be "unjust in all circumstances to do so". Section 27A(5) provides that subsection (4)

"does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it ... [which would make the minimum term] unjust in all the circumstances, and for this purpose the court may [subject to subsection (6)] have regard to any matters it considers appropriate, including—

(a) whether the person pleaded guilty to the offence and, if so—

(i) the stage at which the intention to plead guilty was indicated,

(ii) the circumstances in which the indication was given

and

(b) whether the person materially assisted in the investigation of the offence.

Section 27A(6) states:

The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to

(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts ..., the Offences Against the State Acts ... or the Criminal Justice (Terrorist Offences) Act 2005, and

(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.

This was a second way out for a court. This was the essence of what was provided by the then Attorney General, in consultation with the Department of Justice. First, the Judiciary was not required in any case where it would be unjust to apply a minimum sentence. Second, the criteria that were set out were not exhaustive but purely indicative, and it was left to the court to take a very broad view of whether a minimum sentence should be imposed under the section. The Supreme Court in the Wayne Ellis case came to consider the issue as to whether a minimum sentence imposed was in fact unlawful or, as the Supreme Court was later to find, an unlawful invasion of the sole prerogative of the Judiciary to administer justice and to impose sentences as part of the judicial function of the State.

In other words, those provisions that I have just read out were regarded by the Supreme Court's judgment as an impermissible invasion of the courts' jurisdiction. In so finding, the court relied on previous jurisprudence to the effect that minimum sentences could be legitimate if they apply to everyone, but they could not be regarded as legitimate if they did not apply to everyone who committed an offence of the type in question.

This is the first occasion on which I have had any opportunity to discuss this decision. When a person is a Minister, an Attorney General or in government, it is suicide to even query the correctness of a Supreme Court decision. One just cannot do it. The media would devour you and say you are arrogant, stupid and all the rest of it for querying it. Therefore, the Constitution means what the Supreme Court says it means, and I fully accept this proposition. Even though a person may in good faith disagree with the Supreme Court, if he or she holds executive office, either as Attorney General or as a Minister, then he or she is bound to comply with the jurisprudence of the Supreme Court and bound to comply with their view of what the Constitution does or does not permit. I fully accept all of that. It is obvious. I make no criticism whatsoever of this Bill. It interests me to point out that it was not simply the section in question that had to be amended, but that a variety of other sections also had to be amended to take account of this new determination by the Supreme Court as to where the boundaries lie between the legislative powers of the State, on the one hand, and scope of the judicial function, on the other.

The ratio decidendi of the Supreme Court was that it was, in effect, bound by previous court decisions that if there was to be a minimum sentence or a general sentence of a minimum kind for an offence, it had to apply to everybody who committed that offence and not just to some classes of people who might have committed it. The Bill before us deals with a series of offences under previous statutes where differentiation was made in sentencing of a minimum kind between people who had previous convictions for that offence and people who had not. Of course, it is very commonplace to say in legislation that in the case of a first offence the maximum is two years and in the case of a second or subsequent offence it is seven years. This is nothing to do with the Supreme Court decision that we are dealing with here.

I am tentative on this next point, but I do want to make it. Having been the Minister involved, having consulted with the Attorney General and having carefully considered that there was an issue that a minimum sentence law had to respect, in the ultimate, the right of the Judiciary to depart from it where it considered that its result would be unjust, it was strange indeed that we would find ourselves in the position that the legislation should be struck down. Very few people have been in the position that I am in now of having introduced legislation on the advice of the Attorney General and saying that it was legitimate and kosher in the context of the Constitution, only to find afterwards that the Supreme Court, having addressed the issue, took a radically different view to the effect that the provisions that had been included in order to ensure that no court would be forced to impose a minimum sentence where it would be unjust to do so, and in throwing out categories of issues which the court could look at to see whether it would be unjust, not do so exhaustively and allow the court a wider discretion not to impose it on the grounds that it would be unjust to do so. I am long enough in the tooth, as a Member of the Houses of the Oireachtas, as a person who has held ministerial office and served as Attorney General, and as someone who has practised law, including criminal law, and who has appeared in many constitutional cases, to afford myself the opportunity to say that I believe that in this respect the approach of the Supreme Court was wrong. I just want to record that fact.

I am not saying that my view is preferable to the court's view, or that my view should dissuade the Minister of State from going ahead with the legislation or that my view has any real weight in this matter. I do, however, make the point - it is worthwhile making it but nowhere is it referred to in a satisfactory way in the majority judgment of the Supreme Court - that there is, in my view, a very clear rule of double construction to the effect that any statute which comes before the Supreme Court should be looked at and if it contains a constitutional interpretation, it should be accorded that meaning. Looking at the judgment of the Supreme Court, I find that it failed completely to address that issue. I just want to put this on the record - very few people are in a position to be able to say this - I find that it failed completely to address that issue. It simply looked at the judicial function and the legislative function and, without determining the legality of it - and it expressly prescinds from that of generalised minimum sentences - and stated that this provision offends the distinction between the competence of the Oireachtas to provide minimum sentences and the rule, which the court found in earlier case law, that if there are to be minimum or mandatory sentences, they should apply to everybody in the category and not just to classes of offenders.

I believe that the late Attorney General Rory Brady got it right. I also believe that the Supreme Court did not apply its own jurisprudence on the question of the constitutional interpretation of statutes in a satisfactory way. I have the greatest of respect for the judges who are mentioned in the case report. I have huge respect for all of them. I felt that simply to acquiesce in the judgment and not point out that the whole constitutional dimension had been very carefully considered by the Attorney General at the time in the context of the advice he gave to the Department of Justice and that the Supreme Court seems to have departed from the rule of double construction in that if the Act were in every case and if it is indeed the case that there is something wrong with distinguishing between different categories of persons who commit the same offence, then the statute was capable of being given a constitutional interpretation and ought not have been struck down.

Respectfully and humbly, therefore, I consider that the reasoning of the Supreme Court in this case was wrong. I put that on the record humbly, accepting that we live in a constitutional democracy and that the Constitution, by way of how we have enshrined the judicial function in the Constitution, means what the Supreme Court says it means. However, I feel it is important to put on the record that this statute did not require any court to impose the minimum sentence where it found that it was unjust to do so. The consequence of that must be that it was advisory at the most and was not mandatory. Although its language approaches mandatory language, it has this escape valve of non-application where it would result in an injustice.

It may be a bit self-indulgent to dispute the correctness of a Supreme Court judgment in the Houses of the Oireachtas and perhaps very few people would dare to do so. While accepting that the Supreme Court judgment is the binding judgment, and that my view of the matter is not in any sense a reason Ministers should not act on their judgment and implement the substance of their view, it occurs to me that sometimes the Judiciary takes a view of its province which is, and properly so, jealous of invasion by the Oireachtas. Where the Oireachtas, however, enacts a law which on the face of it respects the right of the Judiciary regarding a minimum sentence for a repeat offender and expressly provides that it shall not have effect if in the opinion of the sentencing court it would be unjust to do so, which is the cardinal principle of what the Attorney General advised the Department to put into the statute at the time, it is hard, applying the double construction rule, to come to the view that the underlying effect of the provision in question was permissive and advisory and not mandatory in respect of any particular outcome in any particular case.

We rarely have situations like this, because at the end of a Supreme Court decision as to what the Constitution means, that is it and that is what the Constitution means. Nobody can argue with it. The Supreme Court has held that whatever was in question means X or Y, and there is no opportunity for anybody to ask if that decision was right. We live in a democracy and legal academics can challenge decisions on areas such as, for instance, the admissibility of evidence and all that type of jurisprudence. People can take sides in a particular case on something of that kind. I must say, however, in respect of applying the double construction rule, which was undoubtedly in the mind of the then Attorney General, Mr. Rory Brady SC, and applying the absolute principle which was set out in this section that the minimum sentence for a repeat offender would not apply where in the view of the court it was unjust, full stop, and considering that the provisions giving examples of reasons for injustice were not exhaustive but purely exemplary, that it seems to me that the double construction rule was not properly applied in this case.

To make one further point on this subject, I believe this was a warning shot across the bows of the Oireachtas to signal that the judicial function in imposing sentences should not be the subject of a legislative policy as regards the circumstances in which any particular punishment is given. I fully accept that the Judiciary is entitled to fire such a shot across the bows of the Oireachtas, but I consider that the enthusiasm of the Supreme Court in arriving at this judgment and this outcome in the Wayne Ellis case was coloured more by a desire to fire that warning shot than to pay adequate respect to the principle of double construction which should have saved the statute.

I will not say more than that. I thank the Acting Chairperson for indulging me in saying that. I feel that sometimes these things should be said and this House is one where these kinds of issues can be discussed. I do not want to trespass on the patience of Members, but I do want to provide some explanation as to what happened and to put a serious question mark over the correctness of the decision eventually arrived at.

The Supreme Court prayed in aid of its decision a prior decision about offences applying to all offenders committing an offence rather than just some or specifying a class of offenders. That was not, however, dispositive of the issue in question, because the kernel of the issue in the Wayne Ellis case in my view, and that of the Minister of Justice, was new territory previously uncharted and therefore it should have attracted the double construction rule. I have made my contribution, and I am thankful to the Acting Chairperson and the House for allowing me to do so.

We gave the Senator a little bit of leeway. We will move to the next speaker and try to stick to the amendment. I call Senator Ward.

Following on from what Senator McDowell said, I have no difficulty with criticism of the judgment, conscious that Senator McDowell from the outset acknowledged the supremacy of the Supreme Court and the reality of the fact that the Minister, the Executive and, ultimately, the law must follow what the Supreme Court has said. I do not necessarily dispute what the Senator has said. Undoubtedly, the Wayne Ellis case was a complex one. I am not sure how much the parsing of arguments in this House advances the matter before us today, but I absolutely agree with the Senator when he says that one of the purposes of the decision made in the Wayne Ellis case was to put a shot across the bows of the Oireachtas to mark out the importance of judicial discretion.

As it happens, I agree 100% with the Supreme Court on that front. There is a habit sometimes in politics for us to want to push the penal provisions in legislation in a particular direction and to say that we are going to clamp down on a particular kind of offence and hit this kind of offender. That is okay for politicians, but it fails to recognise that judges are highly qualified and highly experienced people who know what they are at. As a Legislature, we should have faith in their ability to hit on the right sentence for any given offender. I frequently get comments from people who contact me about something they have read about in the newspaper concerning a criminal case where somebody has got a sentence that they feel is unjust for whatever reason. I am not necessarily saying that those people are always wrong, but what I always say to them is that the case was in the newspaper because it was an outlier, controversial and exceptional.

What is not in contained in the newspapers in respect of such cases is the detail of everything that was said in court, everything that was before the court and everything that the judge saw, heard, read and understood about the offender, as much as about the offence, and the effect on the victim, if there was an identifiable victim in a case. I always caution people against deciding that a sentence is not hard enough for a person because of X, when in fact they cannot possibly have a full understanding of the factors that contributed to the final decision regarding a sentence. The person who does have a full understanding in such instances is of course the sentencing judge who sat in court on the day, and who saw and heard the people concerned. In accordance with the law and the procedures laid down in court, which are there to protect all of us, the judge will have heard exactly what factors come to bear on the sentence.

When handing down sentences, judges invariably set out in some detail the factors they took into account, including mitigating factors that lowered sentences and aggregating factors that increased them. They are now required by dint of decisions of the Court of Appeal in particular to set out where on the range of sentences available to them the offence should lie, where their starting point is and what they are applying in respect of aggravation or mitigation, for example. Much more so than even ten, 15 or 20 years ago, there is now considerable clarity as to the exact factors that have a bearing on judges' decisions when they hand down sentences. This is obviously for defendants and persons who are convicted but it is particularly for the victims of offences. We have made great leaps forward in that regard such that a victim sitting in court or learning after the fact has much greater insight today than a decade ago as to the exact reason the sentence was arrived at.

In addition, there is a provision for the DPP to appeal against the undue leniency of a sentence. If she feels that is inappropriate, there is jurisprudence set out in this regard. We, as Members of the Legislature, should be marking the importance of judicial discretion and of having trust in our Judiciary. In Ireland, perhaps more than in any other common law jurisdiction in the world, we have a Judiciary that has served us incredibly well. We do not see a litany of miscarriages of justice in this country. We do not see people being convicted unfairly in the way that can occur in other jurisdictions, and that is because the rule of law stands. It is because judges respect the law and apply it as it is handed down from these Houses or interpreted by the superior courts, as the case may be.

I do not disagree specifically with Senator McDowell. I recognise his right to say what he has to say, but I do believe it is important for us to acknowledge what the court has said about the Ellis case.

I want to raise another issue. I wish to raise it under section 2 although I could raise it under any section.

It is not particularly related to section 2 either.

Are we not on section 2?

I am saying that what the Senator is going to say is not particularly relevant to section 2.

This Bill, as has been pointed out, seeks to amend a number legislative measures arising from the decision in the Ellis case. As I said on Second Stage, I do not have a difficulty with the changes. Many of them reflect what was in my Private Members' Bill, the Criminal Procedure and Related Matters Bill 2021, or go beyond it. The one question I have, on which I have not tabled an amendment but which arises from the Road Traffic Acts, concerns the fact that this Bill, arising from the Ellis judgment, deals primarily with mandatory sentences arising from second offences. Section 26(5)(b) of the Road Traffic Act relates to consequential disqualifications regarding offences under sections 52, 53 and 56. For someone convicted of a second offence of having no insurance, there is a mandatory consequential disqualification. Not having considered this matter until I was reading the amendments tabled for today, I must ask whether there is any issue transgressing what the Supreme Court said in respect of the Ellis case? It is not a custodial sentence, obviously. The approaches to disqualifications from driving are quite different because one does not have a right to drive. It is a privilege to be granted a licence to drive in this country, as it should be, and therefore that privilege can be removed as the law and courts see fit. Nonetheless, there is in section 26(5)(b), which was inserted by the Road Traffic Act 2010, mandatory disqualification on a second insurance offence. I am wondering whether the Minister of State or Department has a view on whether that also transgresses the ratio handed down in the Ellis decision.

There is nothing that Senator Ward said with which I disagree at all. I know, from having been where he is now and from having served as an Opposition Deputy, a Minister and Attorney General, that there is always a clamour for minimum sentences. It is said that if you hit a Garda, you must go to jail for a year, for example. Minimum sentences go down well with some parts of the media. At the time we were trying to address this matter, we were trying to deal with gangland crime. That was what we were worried about. Fellows who produced sawn-off shotguns on day one could do three years and, lo and behold, appear again with a Kalashnikov or whatever. We wanted to send a message to them that if they wanted to carry out firearms-related offences on an ongoing basis, they faced a very serious sentence of the kind in question. That was the motivation. It was not about appealing to the newspapers or unthinking bar stool critics. The purpose was to send a message to those who had one brush with the use of firearms. It was a very serious matter when I was Minister for Justice. I was the guy who mistakenly talked about the dying wasp in respect of gangland offences. The offences were a very serious matter. Bearing in mind facts of the circumstances that gave rise to the sentence that was challenged, it is pretty alarming that somebody in those circumstances should not feel the full weight of the law on them.

I want to make one comment on what Senator Ward said about the progressive disqualification provisions. I believe the Supreme Court would probably apply the double construction rule and say the disqualification of a driver is not a penalty or punishment in itself but a consequential decision by a court. Let us be honest about it among ourselves: it is a punishment. It is undoubtedly a punishment to put somebody off the road for five years, especially when it wipes out his or her capacity to drive a lorry or taxi, or to work as a travelling salesman or otherwise. It is codology to say it is not intended to be punitive. It is the consequence that is held out in front of drink drivers. They do not care about the crime and do not really believe they will end up in Mountjoy unless they are completely drunk and kill somebody or injure somebody badly, but disqualification is the primary factor. I have no doubt, however, that the court system would come to the view that this does not fall foul of the arrangement in question because it is not a judicial punishment per se.

I cannot remember the time of the change regarding the right of appeal against a sentence but I believe it existed at the time in question. In legislation we passed in this House subsequently in respect of the Judicial Council, provision was made for sentencing guidelines. Presumably, they are supposed to be mandatory in respect of the lower courts provided they have some flexibility in them. They comprise guidance to judges as to what should happen. Let me outline what interests me in that respect: supposing the judicial guidelines provided something that we all said was a bit rich or too light, or supposing it was said that for a second offence of rape there should be a sentence of eight years, at a minimum, we might say the sentence should be far longer and that it should be 14 years, at a minimum. In such circumstances, can the Oireachtas do nothing and must it remain absolutely silent when it considers judicial guidelines on sentencing adopted by the Judicial Council whenever they are, in fact, promulgated?

I think we will be waiting for some time for them to appear. Can the Houses of the Oireachtas say nothing about the guidelines? Are the Houses precluded from saying that hey are inappropriate? This is something that would also have to be considered.

Going back to the basic point, all I am saying is that the separation of powers was clearly in contemplation when the late Rory Brady advised the Department of Justice. He allowed for the escape valve that the section would never apply if it produced what the court considered was an unjust result, without qualification. It was absolute. Therefore, I cannot see how this could possibly have fallen foul of the Constitution if the double construction had been applied. I will leave it at that.

Question put and agreed to.
Section 3 agreed to.
SECTION 4

Amendments Nos. 1 to 8, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 4, between lines 9 and 10, to insert the following:

“(b) by the deletion of subsections (4), (4A), (5) and (6),”.

The purpose of this amendment is to remove presumptive minimum sentencing from the Firearms Act 1925. I am here on behalf of my Civil Engagement Group colleague, Senator Ruane. She spoke last week of an opportunity here to create a fairer and more caring judicial system, one that is built on the idea of justice for rehabilitation. For the Minister of State's part, he recognises the importance of creating such a judicial system. In order to achieve a system which best supports rehabilitation, it is important that we empower the Judiciary to sentence on a case-by-case basis, particularly in respect of firearms and drug offences, which are often highly circumstantial. By accepting this amendment to section 4, the State would have the opportunity to support the Judiciary to make the sentences circumstantial and judges would thus be empowered to make decisions that would best serve the rehabilitation of the offenders in front of them, as well as society at large, rather than simply making decisions based on arbitrary minimum sentencing legislation. After all, the laws we write are often quite simple. As the Ellis case has shown, however, their application in the context of the complexity of life is hard. By removing subsections (4), (4A), (5) and (6) from section 15 of the Act, we offer the accused and, subsequently, society as a whole a fairer and, crucially, a more understanding justice system. By removing these subsections, we would remove the legislation binding judges to pass a presumptive minimum sentence of ten years in prison. Instead, we would implicitly insert an opportunity for judges to offer sentences which they believe will best rehabilitate the offender.

I will speak to amendments Nos. 2 to 5, inclusive. The purpose of these amendments is to remove presumptive minimum sentences from the Firearms Act 1964. Minimum sentencing in regard to the Firearms Act 1964 is what brings this Bill before us today, specifically, issues arising from minimum sentencing legislation in respect of the Ellis v. Minister of Justice and Equality case. In this case, having heard of Mr. Ellis's circumstances and the details of his crime, the judge sentenced Mr. Ellis to a five-year fully suspended sentence and noted in her judgment that he was taking credible measures to reform himself and was, therefore, entitled to a degree of leniency. However, due to the mandatory minimum sentencing legislation in place, the judge was barred from delivering the suspended sentence. This was despite the fact that the circumstances of the case suggested to her that such a sentence would be best for facilitating Mr. Ellis' rehabilitation. Instead, Mr. Ellis faced prison.

This Bill rightly looks to remove the mandatory sentences for second offences, but the presumptive minimum sentencing legislation for first offence remains. As long as this presumptive minimum sentencing legislation remains, it will beg the question: how many more judges wish to suspend the sentence in relation to an offence under the Firearms Act 1964 only to be bound by the legislated minimum sentencing? Currently, the threshold set in the Firearms Act 1964 for when a judge may ignore the presumptive minimum sentencing is in exceptional cases. In such cases, we are asking members of our Judiciary to judge whether or not a case meets an abstract exceptional standard before they can use knowledge of the circumstances of the case to hand down an appropriate sentence. Instead, our amendments would remove this arbitrary exceptional standard and allow judges to offer sentences which they feel are appropriate to the circumstances of each individual case, rather than being bound to abstract minimum sentencing legislation.

Amendment No. 6, which relates to section 6, seeks the removal of presumptive minimum sentences, but this time, from the Misuse of Drugs Act 1977. Even more so than the two Firearms Acts, which the previous two amendments addressed, convictions under the Misuse of Drugs Act 1977 are, by their nature, highly circumstantial. In order to hand down a sentence which respects these circumstances, a judge must be free from the binding of the presumptive minimum sentencing legislation set out in section 27 (3C) and (3D). Once again, the legislation uses the exceptional circumstances threshold to determine when it is not necessary to hand down the presumptive minimum sentence of ten years' imprisonment. As noted by prominent legal academic, Thomas O'Malley, this is a remarkable severe punishment for what is, in essence, a non-violent offence. In practice, it means that those convicted of possessing drugs for sale or supply with a street value marginally in excess of €13,000 will be open to prosecution under this presumptive minimum sentencing.

As I noted at the beginning, cases concerning the misuse of drugs are highly circumstantial. It is for these reasons that the Law Reform Commission recommended, in their 2013 mandatory sentences report, that subsections (3C) and (3D) be removed because they bind judges to restrictive minimum sentencing legislation in cases which require nuance and understanding in order to deliver a fair and correct sentence. We know, for example, that those who are prosecuted in under the 1977 Act are usually individuals whose involvement in the drugs trade comes about through circumstance - individuals for whom any minimum sentencing legislation is unlikely to serve as a deterrent. I therefore urge the Minister of State to accept these amendments and allow our Judiciary to sentence offenders on a case-by-case basis, to sentence without the restrictive binding of minimum sentencing legislation in order to deliver sentences that are not just punishments, but instead, paths to rehabilitation.

Amendment No. 7 relates to section 7 and seeks to remove subsections (9), (9A), (10) and (11) of the Firearms and Offensive Weapons Act 1990. This is part of the legislation under which Mr. Ellis, whose case brings us here today, was prosecuted. I believe the facts of the case speak for themselves. They speak to why we should grasp this opportunity not only to remove the mandatory minimum sentence for second time offenders, but to remove all minimum sentencing in the Firearms and Offensive Weapons Act 1990 and to allow members of our Judiciary to hand down sentences based on the individual circumstances of each case which comes before them. To accept this amendment would be to accept the recommendations made by both the Irish Penal Reform Trust and the Law Reform Commission. It would be to accept a step towards a fairer and more understanding judicial system.

Amendment No. 8 relates to section 8. This amendment seeks to remove section 25 of the Criminal Justice Act 2007, and subsequently, the deletion of section 8 of the Bill. The amendment is proposed with the aim of allowing those convicted under both the misuse of drugs and the firearms legislation access to the possibility of temporary release. To the Minister of State's credit, he flagged his concern with this section when Senator Ruane brought it to his attention last week.

It is important to ground this submission in the details of the Ellis case, which brings us all here today. Under the current legislation, with section 25 of the Criminal Justice Act 2007 intact, should Mr. Ellis be subsequently imprisoned, due to his suspended sentence being overturned the judge would be barred from allowing him temporary release to continue undertaking the credible measures to rehabilitate himself, which ultimately led to the delivery of the suspended sentence in the first place.

If the Minister of State truly believes in building a justice system that is rehabilitative rather than simply punitive then he will take this opportunity to remove section 25 and allow offenders access to the rehabilitative supports available through temporary release.

I agree with this legislation and welcome it, on behalf of Fine Gael. It is important to set things right. I am generally opposed to the concept of minimum mandatory sentences as they unduly fetter the Judiciary. That is not to say that I think all mandatory sentences should be removed. There is a mandatory life sentence for murder, for example, which is appropriate. It puts back into the hands of the Executive the decision as to how much time that person will serve behind bars. One often gets the misconception that the mandatory sentence is for 13 to 15 years as it is in other jurisdictions that we might see in popular media and things like that. In Ireland, a life sentence is a sentence for life and the person remains under sentence for life. That does not necessarily mean he or she will be behind a locked door for life but will be under the sentence for life. I am concerned that these amendments essentially suggest that we should do away with all mandatory sentencing. I do not agree with that although it is something that should be used less rather than more.

I am concerned about some of the things that Senator Black said in her remarks. Senator Ruane, the co-sponsor of these amendments, and I agreed on Second Stage on almost everything that was said. I am referring, for example, to the suggestion that particularly in the case of firearms and drugs offences, we should remove this provision. I do not agree. Firearms offences are pervasive. Earlier Senator McDowell referred to the context in which this law was brought in and to section 27A in terms of sending a message to gangland. I would be concerned at the notion that that message was in any way diluted. The Oireachtas has made very clear its intention regarding the seriousness of those offences. By the same token, Mr. Ellis, as he has been referred to, is not a nice guy. He arrived into a premises carrying a sawn-off shotgun to rob those premises. Yes, he may have been wronged in a legal sense and, yes, the Supreme Court agreed that he was entitled to a declaration of unconstitutionality, which is as it should be. I also agree with the right of the judge, and the sentencing judge in the case, to be allowed to take into consideration all of the factors that had a bearing on his case, and to render what the judge felt was the appropriate sentence.

An American lawyer friend of mine recounts a story about a friend of his who referred to Ernesto Miranda. People will know that surname because of the Miranda rights that arose from the Miranda v. Arizona case in the 1960s. That means that the police in America are now obliged to read to a defendant or an arrested person their Miranda rights, which means he or she has a right to an attorney, a right to remain silent, etc. This person's friend said "Thank God for Mr. Miranda as only for him people would not have these rights". Ernesto Miranda was a kidnapper and rapist who just was not accorded those rights in Arizona and, subsequently, got a declaration along those lines in the United States from the US Supreme Court.

In the context of this debate, there is a slight danger of suggesting that we should in any way reduce the efficacy of the ability of the courts to deal with serious offences. In the context of what has been said by both of my colleagues, I would not for a moment want the message to go out that we are not in favour of hard sentencing for hard criminals. People commit serious offences and obviously different offences have a different effect on victims. Sometimes it is not possible to identify an individual who is the victim of a drugs offence but a person who possesses drugs, in contravention of section 15A of the Misuse of Drugs Act 1977, is in possession of a serious quantity of drugs worth over €13, 000 for sale or supply. Whether there is an identifiable victim in that case does not mean that the person is not involved in criminality that has led to violence, intimidation or aided gangland. There has been a suggestion, for example, that this should particularly apply to drugs offences.

That said, I appreciate where Senators Ruane and Black are coming from on this. There is a major problem in the war on drugs, mar dheadh. We continue to fight the drugs, and the danger is that the casualties in that war are the middlemen or lieutenants and not the kingpins. We must work on a continual basis. We hope that An Garda Síochána and the prosecutorial authorities in the State are constantly working away at those kingpins but there is collateral damage in that war. People have been unfairly given mandatory sentences of ten years, for example, under section 15A. I think there are issues with that but there is also, in the legislation, an opportunity for judges to apply exceptional circumstances.

In the context of these amendments, we need to be clear what message goes out from here concerning serious criminal offending, including drugs offences. If one has cocaine that is worth many tens of thousands of euro then one is not a good person. However, there may well be extenuating circumstances around the possession of drugs and I have dealt with those cases myself. I have defended people in incredibly sad circumstances where they have, perhaps, been discharging a drugs debt or been coerced into holding drugs or whatever it might be. That happens and it is entirely appropriate in such a case that a judge would have the discretion to take that on board. For the most part, the people who are involved in that kind of activity are involved in an activity that brings nothing but pain, death and misery to communities throughout this country, particularly communities in disadvantaged areas. Let there be no doubt that in passing this legislation what we are doing is acknowledging the Supreme Court decision and acknowledging the importance of allowing judges to have discretion. We are not in any way diminishing the seriousness of the offences involved or the importance of rendering harsh sentences for people who are involved in this activity. That is even more true for firearms offences because although the firearm may not have been used it is still a violent offence. If one is a shopkeeper who has a sawn-off shotgun brandished in one's face then that will have a serious effect on the shopkeeper or on the staff who work in the shop. I would not want to dilute the importance of that. My concern with what these amendments seek to do is to say that there should be no mandatory sentence or we should put everything in the hands of judges.

Earlier Senator McDowell referenced the judicial sentencing guidelines. They will come in due course and we will have a debate on them in due course. It is important that the Oireachtas and the Legislature places a very clear line in the sand so that certain offences will be treated harshly. I absolutely agree with the notion that legislation should make it clear to judges that certain offences must be treated in a particular way. When that is done, by which I mean the Director of Public Prosecutions, from a policy perspective knows when charging a person with that offence what the consequences are and will balance that up in the context of the facts of the case as they are known. In general, the office of the DPP will have a better picture than anyone. It will have seen the full Garda investigation into the matter and have a full set of facts but obviously pending what the defence might have to say in any case. This is not to say that mandatory minimum sentences never have a place. What this says is that we must respect the decision of the Supreme Court and accord greater discretion to judges in terms of dealing with what they see before them.

I remind Senators that we must adjourn at 2.15 p.m. even if Senator McDowell has not concluded by 2.15 p.m.

I ask Senators to recall that section 40(a), of the legislation that was passed in 2007, states:

The purpose of subsections (10) and (11) is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 5 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so.

I want to make the point that it was provided that it would not apply where it is unjust. I cannot see how a Supreme Court could say that it is unconstitutional to provide a guideline but say it does not apply where its consequence would be unjust in the view of the sentencing judge, and say that is unconstitutional. I just cannot see the logic of that at all.

I fully agree with Senator Ward that there is a tendency to demand minimum sentences. When I was Minister for Justice, Equality and Law Reform, I saw American penal institutions crowded out with people who fell foul of the "three strikes and you are out" rule on felonies, which includes minor thefts, for which they may end up with a life sentence. The typical prisoner in such institutions is a black or white male from a ghetto. He ends up spending the rest of his life, without the right to parole, in one of these hellholes that the Americans consider penitentiaries.

I agree with Senator Black completely that the rehabilitative portion must always be there. That is why the let-out that it would be unjust to do this seemed to me so obvious that I cannot understand how the Supreme Court took the view that it did not apply at all or that the section meant something else. I will say this to Senator Black, and Senator Ruane, if she were here, would probably agree with me. In certain portions of an area with which Senator Ruane is well acquainted, we have an epidemic of crack cocaine at the moment. As Senator Ward said, you cannot identify any individual person living in that area and say that person is the victim, but we as legislators surely must take a view on that kind of offence.

Day in, day out, we read in the papers that €250,000 or €3 million worth of this or that was stolen. I am beginning to wonder whether these people or the people who are arrested ever get prosecuted. The number of detections is so high, you would wonder. I fully accept that there may be a situation in which an exploited non-national is put in charge of a grow house and is arrested or whatever, but I just wonder who at all is serving sentences for all these apparent offences. I think we need about three or four big prisons given the rate at which I read about these things in the newspapers.

Senator Black has taken a very strong view on the whole subject of abuse of alcohol in our society, and drink-driving is one of the issues that arises in that regard. There is no doubt but that the mandatory disqualification is the punishment. It is unfair in certain circumstances. I am thinking of the fellow who has three drinks at his kid's communion party and proceeds to drive and is unfortunate enough to run into a garda. His job as a taxi driver goes up in smoke and his family is put on the dole as a consequence. Mandatory disqualification is very punitive but it works. Rehabilitation does not arise in that case. The catastrophe for some people of mandatory disqualification is very substantial. I am just saying that what is sauce for the goose is sauce for the gander. Sometimes, if you really want to take something seriously, you must, as Senator Ward pointed out, send out the signal to society at large and to the Judiciary that they are not free just to impose any old sentence that comes their way and that it is not just a matter of the Director of Public Prosecutions appealing particular things. If guidelines from the Judiciary are all right, what is wrong with guidelines from the Legislature, especially when there are loopholes? That is all I am saying.

I am just a little concerned because the word "gangland" speaks to why we tabled these amendments. I have to stress that these are not ganglands; they are communities and they need support and rehabilitation. Now more than ever, by removing the minimum sentence we would acknowledge the fact that they need support and rehabilitation rather than further punishment. We do not need to collate minimum sentences with crime; we should instead collate support and investment in communities in which these crimes are taking place.

I will move and withdraw these amendments.

Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5

I move amendment No. 2:

In page 4, between lines 16 and 17, to insert the following:

“(ii) the deletion of subsections (4), (4A), (5) and (6),”.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 4, between lines 21 and 22, to insert the following:

“(ii) the deletion of subsections (4), (4A), (5) and (6),”.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 4, between lines 26 and 27, to insert the following:

“(ii) the deletion of subsections (4), (4A), (5) and (6),”.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 4, between lines 32 and 33, to insert the following:

“(ii) the deletion of subsections (4), (4A), (5) and (6),”.

Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6

I move amendment No. 6:

In page 5, between lines 4 and 5, to insert the following:

“(b) by the deletion of subsections (3C) and (3D),”.

Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7

I move amendment No. 7:

In page 5, line 11, after “subsections” to insert “(9), (9A), (10), (11),”.

Amendment, by leave, withdrawn.
Section 7 agreed to.
NEW SECTION

I move amendment No. 8:

In page 5, to delete lines 14 and 15 and substitute the following:

“8. The Criminal Justice Act 2007 is amended by the deletion of section 25.”.

Amendment, by leave, withdrawn.
Sections 8 to 11, inclusive, agreed to.
Title agreed to.

I thank the Senators for their contributions. I wish to point out, as noted in my introductory remarks on Second Stage, that the Supreme Court ruling does not affect the provisions in statute that provide for presumptive minimum sentences where there is judicial discretion. That issue is not addressed in the Bill.

Bill reported without amendment.

When is it proposed to take next Stage?

Report Stage ordered for Tuesday, 16 November 2021.
Sitting suspended at 2.09 p.m. and resumed at 2.30 p.m.