Criminal Law (Sexual Offences) (Amendment) Bill 2018: Committee Stage

We are joined by the Minister of State at the Department of Public Expenditure and Reform, Deputy Kevin Boxer Moran, and his officials. They are very welcome. This is the first time the Minister of State has appeared before this committee since taking office. I invite him to make his opening remarks on the Bill before we move to address the amendment.

I am very happy to have the opportunity to present the Bill to the committee. I was struck by the level of support by Deputies on Second Stage. The Bill is a vital enhancement to current legislation. It is important that the sentencing provisions for sexual offences be appropriate to the offence in question. The Bill is of particular interest to me as I initially introduced a related Private Member’s Bill setting out a presumptive minimum sentence for repeat sex offenders. The Government agreed to take that proposal forward when I became Minister of State. The Government is not proposing any amendments to the Bill. I am interested to hear the views of Deputies on the proposals set out in the Bill. I appreciate the support of Deputies, colleagues and the Minister for Justice and Equality, Deputy Flanagan. I am happy to work with Deputies to address any concerns on the Bill.

Members may not have been aware that an amendment to the Bill was tabled. Amendment No. 1 sought to insert new sections in the Bill to amend the Criminal Law (Rape) Act 1981 in regard to the permissibility in court proceedings of adducing evidence or asking questions in cross-examination relating to the clothing worn by an alleged victim of rape or sexual assault. It proposed that where an application had been made in advance on behalf of the accused to allow such questions to be asked or evidence adduced, the judge may permit that only where he or she was satisfied that it would be unfair to the accused to refuse. It also proposed that the victim be entitled to be heard on the application and be legally represented during the hearing thereof. The amendment was tabled in the name of Deputy Ó Laoghaire. Although it bears my signature, I have been advised that the amendment cannot be allowed because it is not relevant to the provisions of the Bill as read a Second Time and must, therefore, be ruled out of order in accordance with Standing Order 154(1). I am not in a position to open the amendment to debate but I will allow Deputy Ó Laoghaire to address it because he may be able to explore the possibility of revisiting it on Report Stage.

This was a very important amendment. Elements of it could be improved, but it deals with a matter which is the subject of significant public debate. I will be seeking to re-enter it or a variation thereon on Report Stage. I will appeal the mystifying decision to rule it out of order to the Ceann Comhairle. The Bill addresses two discrete areas of criminal law sexual offences policy. Under the reasoning employed to rule my amendment out of order, if the Bill only contained provisions on presumptive minimum sentencing and I presented an amendment in the form of the section of the Bill dealing with incest, that amendment would be ruled out of order. The third Act set out in section 5 of the Bill is the same Act that amendment No. 1, dealing with the treatment of evidence in prosecutions for such offences, proposed to amend.

Sometimes entirely unrelated amendments are inserted but this is quite closely related to the debate.

I suggest the Deputy raise the matter with the Ceann Comhairle if necessary. It is valid that he would seek the ban but I will not invite the Minister of State to respond to this. I am just being fair to the Deputy because he put the work in and expected he would have the chance to address it. I call Deputy Clare Daly to make the last comment, though I am not opening a debate on the matter.

I support Deputy Ó Laoghaire in this regard. It is regrettable that we are finding this out now. My office had prepared much work to deal with and try to address his amendment. I am mindful that last June the Minister said there would be a review of how rape cases were conducted in Ireland. He gave us a commitment that there would be a package of proposals by the summer but it is November and we have nothing. The Deputy's initiative, therefore, is important and I do not think the amendment is out of order. He should write to the Ceann Comhairle because it is regrettable that we are finding out only now, given that our offices have done much work to prepare to deal with it.

To offer a little impetus to the effort in the meantime until we reach Report Stage, the Chair was most uncomfortable having to append his name to the letter advising that the amendment could not proceed-----

That is good. It is unusual that we are finding out only now.

-----and not having had an input to it whatsoever.

That is that. I will leave it to the respective skills of the Deputies to address that matter in the period ahead. We will move to dealing with the Bill.

Sections 1 to 3, inclusive, agreed to.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."

Section 4 is opposed by Deputies Clare Daly and Wallace. I invite them to speak to their position.

There is so much to say and a whole afternoon ahead of us to say it, which is great because it needs to be said. The points are basically the same for both sections and, therefore, we do not need to repeat them ad nauseam.

For sections 4 and 5.

Yes. The arguments are quite similar.

If the Deputy wishes to address them together it will be facilitated, although there is no grouping.

That would be great. Nobody can be under any doubt but that we have a massive problem in how our criminal justice system deals with sexual crime. One need not be a genius to work that out, from the inconsistent sentencing and the traumatising of victims by putting them on trial to the pathetically low conviction rates, the broader cultural problems and so on. We should take as a given that it is an appalling situation.

The prevention of sexual offences, at the least, is not as simple as long prison sentences. It is far too complicated to be handled by what is deemed to be the bluntest instrument in the criminal justice arsenal, namely, mandatory or presumptive minimum sentences, to which I have a strong opposition based on evidence and on information that tells us as a society that they do not work and that while they might make a nice media headline to make it look like we are doing something to deal with these issues, none of the evidence supports that view.

It was interesting that in our deliberations on child sex offenders and putting the sex offender risk assessment and management initiative on a statutory basis yesterday, we as a committee dealt with those issues sensitively in terms of our key goal and what it should be, which is protecting the public. These matters can whip up a significant emotional response to sexual predators but, in fact, how society is to be protected is more complicated. Sure enough, the headline on the front page of today's edition of the Irish Daily Mail is, "Should parents be told where predators live?", Although the article was not as bad, that was a frenzied headline. It is about whipping up and inciting emotional responses and so on, and this measure is in the same vein. It is an emotional response to a problem that will not address the problem that it seeks to identify and it uses an instrument that will be problematic.

I made some points on Second Stage that I will repeat. In general, years of evidence show us that presumptive or mandatory minimum sentences for any crime are not an effective deterrent. This is reflected in the fact that the Law Reform Commission report of 2013 on mandatory sentencing and the 2014 strategic review of penal policy made clear recommendations that no new presumptive sentencing schemes should be introduced. Why do we commission these reports if we ignore what they say? The strategic review of penal policy, in particular, was a cross-agency report which included victims' representative groups alongside agencies tasked with crime prevention, the Irish Penal Reform Trust and so on. While deterrents might be an appealing concept in theory, which sounds good as a headline for the tabloid press, the empirical evidence to support the theory is not there. In fact, there is evidence that sanctions in general provide some deterrent, but there is none to suggest that the more severe the penalty, the greater the deterrent than a less severe one. That is a fact. We are having a feel-good session to vent the legitimate horror of the public to these appalling crimes and to give the appearance that something is being done, but it will not do anything.

We must bear in mind the issues with the Judicial Council Bill. The Judiciary has cried out for years for sentencing guidelines but it is entirely wrong-headed to introduce mandatory minimums ad hoc in advance of that. Sinn Féin did a deal with the Government over the Judicial Appointments Commission Bill, and those sentencing guidelines will be given, but why are we doing this in advance of that? Judicial guidelines are a different matter as they are carefully considered, data based and evidence driven. They are far more effective and a useful tool for the Judiciary to decide appropriate sentencing. There is a problem with judicial sentencing but it is addressed by the guidelines, not by a blunt instrument like this. The problem with the Bill, in common with other presumptive minimum sentence legislation, is that it allows for judicial discretion in the handing-down of a sentence. If the court is satisfied that it would be disproportionate to impose one of the minimum sentences laid out in the Bill, the court may deviate from it, but that begs the question as to what is the point of having the Bill at all, given that the judge may ignore it if he or she sees fit. Why do we not allow the judge who is in possession of all the facts of the case make his or her decision on what sentence is appropriate, as is done now? What is the point of this window dressing?

Furthermore, the evidence tells us the judges will ignore this legislation because they ignored the last one. The Criminal Justice Act 1999 introduced a ten-year mandatory minimum sentences for possession of drugs valued over €13,000 but over the years, convictions under the mandatory minimum legislation attracted a ten-year sentence in less than 4% of all cases. As Mr. Tom O'Malley said about minimum sentencing for drugs offences, "One suspects ... that [this section] seldom impinges on day-to-day practice, save to the extent that courts will have regard to relevant previous convictions as a matter of course."

From my experience in respect of the Coroners (Amendment) Bill, I know what a torturous process it is to get the Department of Justice and Equality to deal with legislation. The Judicial Council Bill, which is necessary and which might address some of the matters this Bill attempts to highlight, has been 20 years in the making and has been languishing in the Seanad since last November. Prioritising this Bill, however, which will not have any effect on repeat offenders, deter anyone or have any effect on the actual sentences handed down for repeat sexual crime, is taking time away from Bills like the Judicial Council Bill that would make a difference. It is terrible.

It is interesting that on Second Stage while talking about on repeat sex offenders the Minister did not once say the Bill would make them less likely to reoffend or that it would be a deterrent. Rather, he stated:

By putting these provisions in place the Government is recognising the impact of sexual offences, both on individual victims and on society as a whole. It is ensuring that appropriate measures are available to the Judiciary at sentencing in order to ensure that these crimes can be dealt with both appropriately and effectively.

With respect, members of the Judiciary already have measures available to them at sentencing to ensure the crimes are dealt with. The Bill will not change that or give the Judiciary any new powers. It will have exactly the same powers after this Bill is passed as it has now. The civil servants clearly know this. I do not get it.

These sections do not make sense. The provisions are arbitrary, which is unbelievable. They provide that if someone commits a sexual offence that carries a sentence of five years and then goes on to commit another sexual offence within ten years of conviction, a presumptive minimum sentence applies. What if an offender rapes somebody ten years and five days after the first offence? If all we are doing in this legislation is sending a signal, as the Minister of State said, what kind of signal does it send to a victim when we treat the violent assault she experienced less seriously than we would have treated it if it had happened ten days previously? That is the import of this legislation. What if we were talking about a child victim of sexual abuse whose abuser was convicted of abuse of another child 12 years previously? According to the bizarre logic of this Bill, the abuse suffered by the current victim would be less serious than it would have been if the abuser had committed it when the victim was two years younger because in such circumstances, the abuse would have fallen within the scope of this Bill. That is the reason we have judicial discretion and the reason it is preferred in these matters to the blunt instrument of legislation and the kind of arbitrary cut-off point we have here, which has no logic to it whatever. It is crazy.

What message are we sending? Let us be generous and imagine that the Bill is seeking to right the wrongs of the past when we saw shocking sentences handed down for the worst crimes. I believe that is the motivation of the Minister in this scenario and that it is the effect of terrible wrongs done in the past when terrible sentences were handed down for very serious crimes. However, in constructing a Bill which provides that the suspended proportions of the sentence are not counted in calculating the minimum for the second offence, the Minister is not fixing that problem either. The message in this Bill to those who got away with a suspended or partly suspended sentence for a first offence because of what the Minister of State correctly described as the deep-seated problems in our judicial system in dealing with sexual crimes is that they will have the slate wiped clean. Nothing is changing in that regard. Thankfully, judicial discretion will still apply and the hope would be that a judge will bear this in mind when an offender who has committed an offence previously and got away with it lightly comes before the court. The point is that this Bill will not fix that as it excludes such offenders from its provisions.

We have to move away from a model of criminal justice legislation that is knee-jerk and emotional to one that is evidence led. That is what we tried to do yesterday at the committee and we saw how the media misrepresented it to get a headline. We all know that sex sells papers. A system that hoovers up people and spits them out again and does not deal with the greater societal problems is not doing anybody a favour. It is not doing society or the victims a favour and I believe it sends out a bad signal. The signal I want to send out is that this legislation will not work, will not help, is not based on evidence and is a knee-jerk reaction, which is what we have to move away from. That might be a difficult comment to make, and all the political parties may disagree with that, but it is right.

We are talking about caring for victims of sexual crime. It was only recently that a second sexual abuse and violence, SAVI, report was sanctioned. We have a huge problem with sexual violence in our society but the Government reduced the funding for the Rape Crisis Network by half.

The final point I will make is critical. It was also made by the Irish Penal Reform Trust, IPRT, in response to the Private Members' Bill that gave rise to this legislation. The IPRT stated that "mandatory sentencing regimes are proven to be ineffective in reducing crime, are extremely costly to the Exchequer, and divert resources and attention away from where they are most needed." It also set out a number of tangible measures that could make a difference in respect of dealing with sexual violence in our society. These were the restoration of funding to victim support services; investment in child protection services; investment in crime prevention, detection and prosecution; investment in prison treatment services and regimes; and well-resourced post-release supervision and monitoring in the community. The Bill, which I am sure was well motivated, will not achieve anything and it would be wrong to put it on the Statute Book.

Does Deputy Wallace want to contribute? He and Deputy Daly are noted as the objectors.

I will be brief as I do not want to keep everyone here all day. We heard yesterday that recidivism in this area was much lower than we had thought. In 2013, the Irish Prison Service conducted a study on re-offending which found that the offence groups with the lowest rates of re-offending were homicide, at 26.2%, followed by sexual offences, at 28.2%. While it is obvious that the rate of re-offending would be low in cases of homicide, the re-offending rate for a sexual offender is also low compared with a crime like burglary where the re-offending rate stands at 79.5%. We are concerned that this legislation is based more on anecdotal evidence than empirical evidence. It is more likely fuelled by a crime reporting element in the media who whip up a frenzy at every chance they get. We do not often make positive statements about the media but I want to read a short quote from an article written by Michael Clifford this week. He stated:

... policy is supposed to be made on the basis of research and evidence which points towards a better way of doing things. Among many politicians - and many elements of the media - research in this area is to be avoided in case it unearths inconvenient truths.

He was referring to this very subject.

I have asked some members of the legal profession what they think of mandatory sentencing and there is not much goodwill towards it. When it was introduced about 20 years ago it was a knee-jerk reaction to a drug problem that was not resolved by this approach. Instead, it helped to fill up the prisons and drive up the cost to the State of looking after people who had been carrying drugs of one form or another. The Law Reform Commission has done some serious research on that issue and I want to highlight a couple of points it made in its report. It noted the need to ensure that the provisions achieved their stated objectives and facilitated a reduction in crime. They did not do so, however. The report also stated that many of those coming before the courts were low-level drug users rather than high-level drug barons and that we end up throwing the foot soldiers in jail, rather than addressing the real problem. It pointed out that the aims of deterrence, punishment and rehabilitation are not being met by this approach and that the principles of consistency and proportionality are being ignored by mandatory sentencing.

So-called experts or people who do research, and Mick Clifford touched on this in his article this week, are sometimes frowned upon but we ignore them at our peril. Anyone who tuned in to yesterday's committee proceedings would have been incredibly impressed by the lady from Limerick University who has done a good deal of research in this area.

I certainly do not agree with the notion that we should ignore these people.

I will open the discussion up to other members after the Minister of State has responded.

I note that Deputies Clare Daly and Wallace have indicated their opposition to sections 4 and 5. The sections set out presumptive minimum sentences for repeat sex offenders and form the key provision of this Bill, as provided for by the House on Second Stage. In opposing these sections the Deputies are essentially opposed to the core principle of the Bill. These provisions will apply only in very limited circumstances where serial offences have been committed. If an offender has been convicted of serial sex offences and received a sentence of at least five years and goes on to commit another within a further ten years, the presumptive minimum sentence will apply. Many sex offenders manage their own release from prison through the Probation Service and the Garda Síochána and do not go on to commit further crime. However, some do offend again and by putting in place these provisions, the Government recognises the impact of sexual offenders on individual victims and on society as a whole. It ensures that appropriate measures are available for the Judiciary when sentencing, to ensure these crimes are dealt with efficiently and appropriately.

There are very few instances where a mandatory or minimum sentence is specified in legislation. There is a mandatory sentence for murder, which is life imprisonment, and for a number of serious offences such as crimes involving drugs or firearms. Using the minimum sentence is intended to reflect the impact on society as a whole. These provisions have been proposed by the Government as a reflection of the impact of serious sexual offences on victims and to ensure the seriousness of these crimes is reflected in how judges can deal with them. These laws address serious sex offences. I have met victims and the purpose of bringing forward this legislation is based on the evidence put in front of me by these people.

The Minister of State is not the first Independent Member to have an interest in justice legislation but, unlike the others, he has a good chance of getting agreement in certain areas. The substantive part of the legislation is about amending the Punishment of Incest Act 1908. After the Criminal Law (Sexual Offences) Act was enacted last year we had the anomalous position whereby men convicted of incest were subject to a term of imprisonment of life but this did not apply in respect of women. Sections 2 and 3 of this Bill propose to harmonise that situation. The inappropriate sentence of life imprisonment has been reduced to ten years and it applies to both men and women so there is equality in that regard.

We are discussing the points made by Deputies Wallace and Clare Daly against sections 4 and 5 of the Bill, which are the Minister's part of the legislation. Sentencing is an extremely complicated area and politicians sometimes try to simplify it by introducing legislation. A recent serious offence, the kind which the Minister wants to see dealt with vigorously, involved a woman, Leona O'Callaghan, who gave up her anonymity. She was a complainant in a serious crime in which she was the victim of rape and the person accused was convicted of her rape. That person was already serving a 15-year sentence for raping another girl and, when his sentencing came up, the judge was well aware of this. The judge gave him a sentence of 17 years' imprisonment, which is very lengthy, but the Minister is proposing that the judge impose a sentence of at least ten years. My concern is that, when judges have to impose ten years, they start at that level but a person convicted of rape, such as in the case of Ms O'Callaghan, deserve a very lengthy sentence. Along with other people, I believe Ms O'Callaghan was satisfied with the sentence handed out to her rapist but she was concerned over another area of sentencing law to which we do not give consideration here, namely, that his sentences will not run consecutively but concurrently.

I agree with much of what Deputies Clare Daly and Wallace said to the effect that mandatory sentencing is very arbitrary. It takes away the discretion of a court. We all assume judges impose light sentences but they do not. They have imposed many serious sentences for rape and other serious sexual offences in recent times and we have to stop the story getting out that the courts do not treat sexual offences seriously. People get very lengthy sentences for rape and serious sexual offences.

We supported this legislation on Second Stage, though I did not have an opportunity to speak, and I will support it here, though I have some concerns. It has been through the Office of the Attorney General, and that fact gives me some concern. I have two issues. We have to be very careful not to identify sex offenders as completely separate from other criminal offenders. The Oireachtas asserts its disapproval of criminal activity through the sentences we say should apply. Murder gets a mandatory life sentence but no other crime does. If a person is convicted of murder and commits another serious offence afterwards, we would not contemplate forcing them to serve a life sentence. The Oireachtas has decided that there should be a set period of imprisonment for some offences, as set out in the Schedule, with five years for some offences and ten for others, and that is how we set out our disapproval of certain actions. We need to be careful about this. The Minister could also be asked why these provisions do not also apply to all other serious offences.

We also need proper sentencing guidelines. The guidelines, in the form of decisions of the criminal section of the Court of Appeal, are there to be looked at and convicts can have an understanding of what type of sentence they will get from the courts by looking at the thresholds set by the Court of Appeal. However, we would benefit from the courts setting out sentencing guidelines in respect of these and other offences so that there is greater clarity. No matter what guidelines we have, or what amount of harmonisation we aim for, there are always going to be different circumstances. The victim will be different, as will the accused, and their circumstances will vary. By bringing in mandatory sentencing we are taking away from the ability of the court to exercise its discretion.

I will not support the calls to repeal these sections but the points merit further consideration. The way to do it is by enacting the Judicial Council Bill and getting the judicial guidelines up and running.

I will take other members before Deputy Clare Daly because they have not had an opportunity to contribute. I will then come back to the Deputy.

I will be supporting the Bill. I agree with much of what Deputy O'Callaghan outlined so I will be reasonably brief.

The first point I would like to make is about whether the Judiciary decides to follow legislation that contains provisions relating to minimum sentences. I do not think that is a reason to oppose legislation. It raises a question about the Judiciary choosing to ignore legislation that contains such provisions. It does not raise a question as to whether there should be legislation of this sort. That is part of a larger debate for another day.

I share many of the reservations about the bluntness or effectiveness of guidelines relating to minimum sentences. Overall, the legislation is moving us in the right direction. I agree with what the Minister is trying to do. There is more benefit in going forward with it than in removing sections 4 and 5, which would effectively gut the legislation.

Essentially, when everything else is stripped out, what we have here is a difference in viewpoints that are genuinely held by different people about how to tackle something. From what I understood from Deputy Clare Daly's contribution, I do not think she would be supportive of any type of guidelines regarding minimum sentences and would leave it all to a process of judicial decision based on general sentencing guidelines. I worry about the impact on sentencing of these much called for and much wanted sentencing guidelines for the Judiciary. The passing of legislation that provides for minimum sentences is one of the strongest sentencing guidelines the Judiciary could be given. However, we are informed, on more than one occasion, that the Judiciary chooses to ignore such guidelines. In that context, we could be faced here with a situation whereby a very nice set of sentencing guidelines are not followed.

I will support the Bill. I will not be supporting the removal of sections 4 and 5.

To respond to that last point, it has been shown elsewhere that, where guidelines are in place, it is not simply that the judges read them. There is transparency and knowledge about the sentences being handed down across the board. There is more information about sentencing. Judges are better educated and better equipped as to what the standards are and what is expected of them. There is more transparency in standards as to what are considered mitigating and aggravating factors. That would be valuable. I look forward to the Judicial Council Bill proceeding to Committee Stage in the Seanad in the near future. I think it will bring about a significant change in sentencing policy that is measured and that will make a real difference.

In terms of the provisions that are specifically opposed, I take on board many of the points that Deputies Wallace and Clare Daly made. I do not support mandatory minimums. I would draw a distinction for presumptive minimums because it preserves an element of judicial discretion that I think is important. Judges have exercised that discretion in areas in which presumptive minimums exist.

On the face of it, and in the abstract, what has been outlined here seems a relatively fair approach to sentencing. When somebody who commits a serious offence within a reasonable amount of time of committing another relevant offence that is also quite serious - making him or her a repeat offender - the kind of approach that is outlined is very often the approach that a judge would take. Having said that, there are points that have been made which I will consider. I will not oppose the sections at this point, but I will keep an open mind as matters progress.

I am very wary of mandatory minimum sentences. Presumptive minimum sentences are somewhat different. It takes two or three readings of the formula outlined here in order to properly understand exactly what is proposed. Time will tell what effect that will have, but we will certainly have to keep an eye on it.

The most significant reservation I have is one that I would like the views of both Minister of State and the Minister for Justice and Equality on, and perhaps there will be an opportunity for that on Report Stage. Where there is a clear indication for what the sentence for a second offence might be, there is a disincentive for the accused to plead guilty. I am slightly concerned at that because if the prospective sentence for the second offence is already relatively clear, it seems possible that an accused's lawyers will suggest there is no point in pleading guilty. If a guilty plea is not entered, that means the complainant will potentially be brought through a court process, and the trauma involved, that would otherwise be avoided.

I will not be opposing the section at this point, but I would like the Minister and the Minister of State to address the point I have made. I will keep an open mind until Report Stage.

There are a lot of points to which to respond. The first is that I feel my contribution and that of Deputy Wallace are very much in defence of the Judiciary in some ways. I think Deputy O'Callaghan's example showed very clearly that judges are more than capable of taking previous crimes into consideration when they are giving their sentencing decisions. Although there have been some appalling judgments given in cases of sexual offences and other instances, Deputy O'Callaghan's point that things are slowly beginning to change is fair. It is absolutely not happening quickly enough. We know that rape is the least likely of all violent crimes to go to trial. Some 85% of alleged rapes go unpunished. The figures suggest that for every 100 women who allege they have been raped and who get to trial, only eight will get to see a judgment in their favour.

There are major problems. Deputy Brophy stated that there is a complete difference between mandatory minimum sentencing and judicial guidelines. Judicial guidelines are a process of research, evidence-based education of judges and all interested groups. They have been proven to be incredibly effective in guiding judges in sentencing. Time would be better spent on this area, which is evidence based and worthy, and the Judicial Council Bill, which would deal with rogue judges who come out with some wacky, appalling and awful judgments, although they are a minority, but there is nothing we can do now without that Bill. Instead of the Department dealing with those issues which would achieve what the Minister wants to achieve, it has been spending time on this, which the Minister acknowledged will apply in very limited circumstances - I might even say probably none.

On that basis, one could ask why are we bothering to oppose it, if we believe it is going to have no impact. I do not believe it will be applied, to be honest, but I think we have a responsibility to challenge it because it should not be on the Statute Book on that basis. The reason I say it does not even do what it says on the tin is because the Bill specifically states that if a judge feels it is disproportionate to impose one of these presumptive minimum sentences, he or she can do what he or she likes. Judges can do what they like now as well so nothing is changing.

I would like to see the logic of this formula. I want to talk through what we are talking about here. We are not only talking about rape and so on. I appreciate that rape is not the only crime involved and that sexual assault, child sexual assault, aggravated sexual assault and incest are all covered too. However, the Bill only deals with crimes that attract sentences of five years or more.

If a person committed an offence but received a sentence of less than five years - the offence could have been bad, given the sentencing in sexual offences cases - that person will not fall within the remit of the Bill. They will be out of the equation to begin with. I would like that logic to be explained to me. The Bill states that where someone was convicted on indictment of an offence specified in the Schedule - rape, sexual assault, child sexual abuse and so on - and sentenced to a term of imprisonment of at least five years, the Bill will not apply. If that person is subsequently convicted of another scheduled offence committed within ten years of the first conviction, a presumptive minimum sentence will apply to the second conviction. The sentence for the second offence has to be at least three quarters of the maximum sentence that can be imposed for it. If the maximum term is life imprisonment, the minimum sentence should be at least ten years. The Bill states any suspended portion of a sentence will not apply. If a person was sentenced to a term of imprisonment of seven years for an offence, three of which were suspended, and commits another offence, they will not fall within the remit of the Bill, as they will have only served four years of the sentence. The matter is complicated. Sentence lengths and the reasoning are arbitrary and I have not heard a reason for it. It is unworkable. If I was a judge trying to calculate the formulas, I would just do what I would anyway. I would look at it and say the person did something before and should not get away with it this time and increase the sentence. What are we doing? I support the bits about incest, which are fine and on which we all agree. The matter was supposed to have been cleared up earlier, but these bits should not have been added. I know that the Minister of State is sincere in his motivation, but we should not be engaging in this process. It is completely wrong.

It is not me who is going on about mandatory sentencing but the Law Reform Commission in the strategic review of penal policy. Every organisation that has looked at this issue has stated we should be moving away from specifying it in legislation. We should give judges discretion in dealing with all of the nuances in addressing these issues.

I will make a number of points. We all agree that most judges have no problem in working within the legislation. However, we should all remember that, as legislators, we have a serious responsibility. We can have a huge impact on people's lives in what we do and say here and the legislation we draw up. I am not sure drawing up legislation which appears to be at odds with much of the empirical data and the recommendations of the Law Reform Commission and the Department of Justice and Equality is the route we should be going down, as legislators. I have often heard the Government tell us that the courts are independent in carrying out their functions and that sentencing in individual cases is a matter for the Judiciary. Why would we impose presumptive minimum sentences in sexual offences cases? Deputy Jim O'Callaghan made a brilliant case for our argument, but the confidence and supply agreement does not allow him to vote with us. He is in the courts on a regular basis and knows what is going on. He made a strong argument in favour of letting the judge use his or her discretion.

The key issue is that there are repeat and serial sex offenders. Deputy Wallace is well aware that there is a clear separation of powers. The courts have always had discretion in sentencing, in which we cannot interfere. However, the Oireachtas can introduce laws to express its revulsion at repeat sex offenders. The Government makes no apology for trying to protect citizens, in particular women and children, from repeat sex offenders who refuse to make any attempt to reform their behaviour. I have noted what Deputy Ó Laoghaire said and we will come back to him on it. The objective of the Bill is to deal with sex offenders.

What is the rationale for the formula?

I have listened to and taken on board the Deputy's views and will come back on some of them.

Reference was made to Deputy Jim O'Callaghan, in particular. I have met a number of people who are looking for this legislation. I continue to support them, as does the Government. We are working with them and this legislation will go a long way towards helping them.

I would like to be convinced and would love to know who those people are. I would like to be convinced that the Bill will help them. I hope any legislation would help. Perhaps they know how the formula will work because I cannot see any logic to it. That was the question, although I do not doubt in any way the Minister of State's motivation. I do not doubt that there are people who are hurting badly because the criminal justice system has failed them, but the point is we do not want to repeat it by bringing forward a bad law that will not help them when we should have been spending the time in considering judicial guidelines and establishing a judicial council to make improvements in some of these areas. I am trying to understand the logic behind the formula which does not make any sense to me as loads of people are excluded. Hardly anybody will be covered by it. Therefore, I would like to know a little more about it.

Ms Jane Ann Duffy

I can attempt to give an insight into it. The intention behind the provision is to target the more serious sexual offences. That is why the minimum sentence of five years was put in place to specifically target serious rather than all sexual offences. The additional provisions are to ensure it will apply to persons who have received a custodial sentence of five years. That is why there is a discount if portions of sentences were suspended.

What was the reason for picking a sentence of five years?

Ms Jane Ann Duffy

It is an indication that it was a serious offence. Where there is a custodial sentence of five years or more, it is considered to be a serious sentence.

If we are saying it is being brought forward to deal with judges who do not impose adequate sentences and if we are basing it on a sentence of five years, we are building on the foundations of the problem. The first sentence was a judicial decision. That is what we are trying to change. What was the empirical evidence in deciding on a sentence of five years? Why will the suspended portions of sentences not apply?

I will allow the official to reply, but I am told that protocol does not allow officials to respond directly to questions while the Minister of State is present. I am happy to allow the official to respond directly for the purposes of facilitation and information, but we will then get back on track.

We are saved by the bell - a vote has been called in the Chamber.

How long ago was it called?

The official should proceed.

Ms Jane Ann Duffy

Where a custodial sentence of five years or more is imposed, it is generally considered to be a more serious offence. For it to apply to particularly serious offences, it was decided that it would not apply where a large portion of a sentence had been suspended. It is to apply to persons who have received a custodial sentence of five years or more.

We will leave it at that. The clock is ticking. There are no amendments to section 4. However, as was indicated during the course of the debate, the section is opposed.

Can we leave to vote in the Dáil before we vote on the section?

Can the sitting be suspended to allow committee members to vote in the Dáil?

As we cannot have a vote at the committee after a vote has been called in the House, the sitting is suspended until after the vote in the Dáil. I appeal to members to return directly to the committee room.

Sitting suspended at 5.10 p.m. and resumed at 5.30 p.m.

Immediately prior to the suspension, a vote had been called in respect of section 4 of the Bill. As the full membership of the committee is not present, under Standing Orders we are obliged to wait eight minutes or until all members are present before taking the division.

Question put:
The Committee divided: Tá, 5; Níl, 2.

  • Brophy, Colm.
  • Fitzpatrick, Peter.
  • Moran, Kevin Boxer.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.

Níl

  • Daly, Clare.
  • Wallace, Mick.
Question declared carried.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."
Question put:
The Committee divided: Tá, 6; Níl, 2.

  • Brophy, Colm.
  • Fitzpatrick, Peter.
  • Moran, Kevin Boxer.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Troy, Robert.

Níl

  • Daly, Clare.
  • Wallace, Mick.
Question declared carried.
SECTION 6
Question proposed: "That section 6 stand part of the Bill."

An amendment to this section in the name of Deputy Ó Laoghaire has been ruled out of order, as we addressed at the outset of our deliberations.

May I speak on the section briefly?

I wish to indicate that I may table amendments to section 6 on Report Stage.

Question put and agreed to.
Title agreed to.

Do we not vote on the Bill?

I have completed what I was told to do, namely, agreeing section 6 and the Title. I have no other instruction before me.

We will bin it.

Do we not get to vote on the Bill? We are not going to have the bell ring, but-----

That would not be until-----

Would it be on Report Stage?

-----Fifth Stage.

I do not know. I cannot remember.

We are referring it back, which is what the Chairman was saying.

That is correct.

That is grand. We were not going to call a full vote in any event; we were just going to call for a voice vote.

We are only dealing with the amendments. We have agreed the Title and completed our consideration of the Bill without making any amendments to it. The Bill will be returned to the Dáil for Report and Final Stages. The Minister for Justice and Equality will make arrangements in that regard.

I thank the Minister of State and his officials for attending. I also thank each of the members of the Select Committee on Justice and Equality for being here. I advise them that the select committee is adjourned until 10.45 a.m. on Wednesday, 12 December next, when we will be dealing with the Coroners (Amendment) Bill 2018.

We will all believe that when we see it.

Absolutely.