Skip to main content
Normal View

SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Thursday, 12 Jun 2003

Vol. 1 No. 14

Criminal Justice (Temporary Release of Prisoners) Bill 2001: Committee Stage.

I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, and his officials to this meeting, the purpose of which is to consider Committee Stage of the Criminal Justice (Temporary Release of Prisoners) Bill 2001.

SECTION 1.

Amendment No. 1 is out of order.

May I ask a question before the Minister of State speaks? The first amendment, which has been ruled out of order, is in the name of Deputy Deasy and relates to a parole board. Most of Deputy Deasy's amendments are consequent to this one and I have proposed an amendment to the same effect. Probably the amendment was ruled out of order because of a potential charge on the Exchequer. However, we should discuss the principle of the issue.

It seems extraordinary that we are embarking on legislation which concerns the release of prisoners without discussing the fact that we have no statutory parole board and that we are in the extraordinary situation that whether a prisoner stays in prison, under all and every circumstance, is at the sole discretion of the Minister for Justice, Equality and Law Reform. This extraordinary situation does not exist in any other country in the western hemisphere.

We need a statutory basis, and an established body of people, to look at the matter. The Minister, who is a busy person, will not have the opportunity to discuss these issues in detail and will refer back to the civil servants. Some 9,000 to 10,000 people go through our prisons every year, a large number of whom will be released under one form or another and the criteria laid down in this legislation are quite extensive. The grounds on which prisoners can be released range from humanitarian grounds through to rehabilitation, reintegration, and the good management of the prison etc. The Bill envisages all this happening under the eye of the Minister and at his sole discretion.

The previous Minister, Deputy O'Donoghue, promised that a statutory board would be up and running long before now. He made that promise and commitment in the context of this legislation as part of his address when the Bill was introduced over two years ago. No administrative steps have been taken to deal with the matter since, which means that we are effectively discussing all our amendments in that vacuum. We expected that the framework, which would have been of assistance to the Minister, would have been in place. Some time should be allowed for a discussion of this. The Minister should explain the reason there has been no action on the commitment made by his predecessor.

This Bill was needed and gives clarity to the area. It refers to the release of a person and reintegration in society. That is essentially about someone being released permanently, without parole. The former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, promised statutory parole boards on which no progress has been made. Deputy Costello is right. We cannot have an ad hoc situation. We need more than the discretion of the Minister. We need experts who will examine each individual case.

The real danger here, which arises when there is no statutory parole board, is politicisation. Follow if one wants the hairy heel of populism, but however strong a person is as a politician it creeps in. It makes sense to think about organising and structuring a statutory, as opposed to an interim, parole board. It would provide clarity and certainty, not alone for the public but for prisoners. People would know the rules and where they stand. The rules need to be defined in this area.

It is not acceptable that the present situation be continued on an interim basis. This was my reason for tabling the amendments. I understand the reason they were ruled out of order but this issue is something which the Government, and perhaps this committee, should consider seriously.

Standing Orders do not allow the discussion of a parole board because it could impose a potential charge on the Revenue.

Could the Minister reply to the commitment made when the matter was addressed in the Dáil in March?

It is not appropriate at this time.

It is as well to get it out of the way now at question time. This was to be in the framework of a statutory parole system, as the Minister indicated. Could he tell us if we will get it, before we go into the details? I know this is not directly on the amendment but it is part of the Bill.

It costs money and as a committee, we are not in a position to discuss the matter.

The Minister knew it would cost money when he told us these particular proposals would be anchored in the system. I would like to know the reason they are not so anchored.

We operate under the Standing Orders of the Dáil and there are financial implications here which do not allow a discussion on parole. I am sure that, through other amendments, the Deputies will be able to link in whatever comments they have on it.

I am trying to be helpful to the Minister.

I am trying to help the Deputy.

Amendment No. 1 not moved.
Question proposed: "That section 1 be deleted."

We propose to delete section 1 to provide for the Short Title of the commencement section to be included at the end of the Bill. The reason is that if a Bill is divided into Parts, these provisions are included at the beginning whereas if it is not divided into Parts, these provisions come at the end. This amendment is a standard provision and makes provision for the Title and commencement date. It must be read in conjunction with amendment No. 36 which makes provision to put it at the end. It is simply a relocation of the Title.

Could that not have been done in the beginning?

I have no idea but we have been advised that it is standard practice that when the Bill is in one Part, this goes at the end.

Question put and agreed to.
SECTION 2.

Amendments Nos. 2 and 3 are out of order for the same reason as amendmentNo. 1.

Amendments Nos. 2 and 3 not moved.

I move amendment No. 4:

In page 3, line 21, after "may" to insert "by direction in writing".

This amendment would provide that the Minister would "by direction in writing" direct that such person as specified in the direction be the person etc. In relation to the operation of the legislation, this means the Minister would put in writing what directions he gave in terms of temporary release and related matters. The Bill does not state this should be in writing but it is appropriate that directions given by the Minister should be formally recorded. They should not be given by telephone but in written rather than oral form in order that there is a record of the direction and the proper protocol and conditions are observed. This would strengthen the Bill and be beneficial to the working of the terms and conditions in the legislation.

The provision, as currently framed, allows for the Minister to direct the temporary release of a prisoner having regard to the purposes of such a release and the considerations the Minister must take into account before deciding whether to grant temporary release. It is not intended to change section 4 of the 1960 Act which provides:

Where the release of a person under section 2 or section 3 of this Act is made subject to conditions, the conditions shall be communicated to the person at the time of his release by notice in writing.

While the Minister's direction may also include conditions both standard and specific to the prisoner in question, the written conditions referred to in section 4 would be included in the notice for temporary release given to the prisoner by the governor or the Prison Service. Such written notice would always be given to a prisoner when granted temporary release, regardless of the circumstances or urgency of the case. However, some flexibility must always be maintained and to provide specifically that such directions should only be in writing could be extremely inflexible in an emergency situation. While I cannot overstate the importance of written directions in this area, it is also important to be realistic in regard to unexpected events that can arise.

As I have outlined, it is the practice for a prisoner to receive a notice in all circumstances, in advance of his or her temporary release, setting out the period of temporary release and the conditions which apply to that period. That practice will not change and the provisions for this will be contained in rules to be made in accordance with the amendment. Therefore, I do not propose to accept the amendment.

I did not catch if the Minister of State said whether the wording of the 1960 Act specified that the notice would be in writing. If it does, as this is an amendment to the Criminal Justice Act 1960, I do not see the reason we should not restate it here to make sure of compliance. I agree that an emergency situation could arise such as the case of a sudden death when the Minister is out of the country. Should we not specify that the usual method of communicating the decision of the Minister be done in writing? This is a matter which has far-reaching implications because he is directing the release of somebody who has been put in custody by the courts. It is not something that is done lightly. The normal procedure is that it should be done in writing. Emergency situations can be dealt with as they arise but the legislation should reflect that we expect a formal structured provision that the matter should be dealt with in writing. If the Minister of State is not prepared to accept my amendment, perhaps he would accept the principle underlining it and bring forward his own amendment on Report Stage.

As Deputy Costello rightly says, the Bill is an amendment to the 1960 Act and any provision in that Act which is not amended by the Bill will remain in place. Section 4 of that Act states that where the release of a person under sections 2 or 3 is made subject to conditions, these shall be communicated to the person at the time of release by notice in writing. That means that when somebody is being released on a temporary basis, the person effecting the release, namely, the prison governor or the Prison Service, is obliged by law to give him the reasons for his release in writing. This process allows the prisoner to have documentary evidence if anybody challenges him as to his status. The conditions of the release are set out therein.

Deputy Costello's amendment would entail in addition that when the Minister makes a direction to temporarily release somebody, that direction should also be in writing. In the normal course of events that will be in writing in almost all cases. We are trying to provide for the situation where speed is required because of an emergency. It would be unreasonable for it to be obligatory for a decision to be made in writing in such a case. However, I accept the Deputy's point. Perhaps we could recast the section to state that, in the normal course of events, this ministerial direction to the prison service should also be in writing but in emergency cases it can be made in a way other than writing but it will subsequently be recorded in writing. Would that meet the Deputy's approval?

Yes. Perhaps the phrase "where practicable" could be included. That is a common term used in legislation of this nature. I appreciate what the Minister of State has said. If he is prepared to accept that approach and come forward with his own amendment on Report Stage, that would cover the matter adequately.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 3, line 24, after "period," to insert "or during such time or times in the course of a period so specified".

It is stated in the subsection that prisoners would be released for a temporary period and subject to such conditions as may be specified. I wish to extend that to "or during such time or times in the course of a period so specified". This would allow that prisoners would not be restricted to being released for a specific period but that they could be released for a period of a number of days, or on a day to day basis for a number of hours such that the situation might require. This would apply, in particular, in the case of prisoners who are preparing for release. They might be released in order to go to a FÁS centre or some rehabilitation project or gain employment. This would allow one to link up the activity in the prison with that outside it.

I wish to provide more flexibility in this section to allow for a greater rehabilitative model to be developed. This would be very much in line with the proposals of the National Economic and Social Forum report on the reintegration of prisoners which was produced last year and which I understand had the blessing of the Government. The extension to include that clause would give the Minister greater scope to deal with the release of prisoners in circumstances where it would be beneficial.

I am in agreement with Deputy Costello. Some guidelines are required as to the type of conditions covered. There is no mention of the procedure for the renewal of authorisation for temporary release. If somebody might be released for seven days that might need to be extended. Some guidelines need to be specified as to how the Minister will operate in such a situation. The procedure is quite vague and discretionary. A set of guidelines would clarify the position.

I assume that the intention behind Deputy Costello's amendment is to provide that, within a certain overall time limit - I am not quite sure how and in what circumstances this would be best determined - a prisoner could be granted specific periods or blocks of temporary release. Perhaps the Deputy is referring to cases where temporary release is granted for specific hours each day or a specific number of days or weeks to attend a training course, for example. Having looked at the matter I am satisfied that the provisions in the Bill which allow for the granting of temporary release for specific purposes and specific periods of time, subject to the relevant conditions to apply, adequately meet such situations. Therefore, I do not think the amendment is necessary. According to section 2 (1), "The Minister may direct that such person, as specified in the direction, being a person who is serving a sentence of imprisonment, shall be released from prison for such temporary period, and subject to such conditions, that may be specified." The conditions could be that the prisoner may be out from 9 a.m. until his or her return to the prison at 5 p.m., for, say, four days of the week. We are advised that gives sufficient discretion to cover the types of cases the Deputy is trying to outline and that it is not necessary to repeat it in a specific format as he suggests.

The subsection specifically states: "for such temporary period". It does not include the words "temporary periods". Conditions are a different matter. They are not related to time, whereas the word "period" does.

No, conditions could also relate to time. Conditions include a prisoner having to come back at 5 p.m. each evening, rather than being out.

That may be so, but it does not state "each evening", rather it includes the words "a period". If it included the word "periods", one could have conditions attached to "period" and "periods". As it stands, if it stated "subject to such condition", we would find a problem with it. However, it does not. It states "subject to such conditions". Therefore, why does it not state "for such temporary periods"? That is what I am seeking. There is a world of difference between "period" and "condition". Any dictionary will tell one that the word "period" has to do with time, whereas the word "condition" has to do with a qualification on how that time is used or the way the person operates. There is no sense in our confusing the issue. This is in order that the Minister has greater flexibility.

It is obviously in the manner in which the Minister envisages using the powers granted to him or her that there would be such flexibility. For example, a prisoner could be released to attend a course or training centre for a period of time on Mondays and Fridays. He or she could be able to stay out during the day and come back in the evening, or there could be overnight stays. It would not damage the legislation to insert the plural. Rather, it seems it would improve it by making it clear that the Minister had the utmost flexibility in varying the periods under which the release would take place. I do not see the reason the Minister of State does not take this amendment on board, in order to clarify the matter. As it is, it is not clear that the provision gives the extra scope the Minister of State thinks it does.

I have just learned something new, of which I was unaware - temporary release is sanctioned each day separately. I take the Deputy's point. Perhaps it will do no harm to have the word "periods" inserted as it will make the provision more flexible. We will have a look at it and see what the implications are.

Is Deputy Costello withdrawing the amendment for the time being? I am sure he will table it again on Report Stage, if the Minister has not done so.

We will look at it.

I have witnesses.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 3, line 24, to delete ", as may be so specified" and substitute "as may be specified in the direction or rules under this section applying to that person".

This is a technical drafting amendment which has been recommended by the parliamentary counsel.

Amendment agreed to.

Amendments Nos. 7, 8, 9, 12, 20 and 27 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 7:

In page 3, line 28, to delete "him" and substitute "the person".

The intention of these amendments is to ensure the legislation is gender proofed and politically correct. The Bill refers to preparing "him" for release. Deputy Moynihan-Cronin suggests that there are no women in jail or that no women will be on temporary release. In current legislation, the single gender refers to the generic form. However, in 1960 that was not the case. The amendments would bring the Bill into line with the 1960 legislation by substituting the word "person" for "him". The word "her" does not appear in the legislation. It would be preferable if the Minister of State acknowledged the error of his ways and inserted a neutral word which would cover "him" and "her", before he gets into trouble.

Can the Minister of State get Deputy Costello out of trouble?

Deputy Deasy says that this is shocking. I am shocked by this at this stage of my career.

I assume the purpose of Deputy Costello's amendment is to avoid the use of the masculine gender in the Bill. While all new legislation in now gender proofed, in that it refers to he or she, where the purpose of the legislation is to amend older legislation, such as in this case, amendments are drafted in the same gender as in the original Act. The Criminal Justice Act 1960, which this Bill amends, was in the masculine gender, hence the use of the words "him" and "his" in the Bill. As the Deputy is aware, the Interpretation Acts of 1937 and 1993 provide that in every Act, every word importing the masculine or feminine gender, unless the contrary intention appears, is construed as applying to the other relevant gender. That being said, I have a certain responsibility for gender equity and I am beating State boards around the head to get so many female members. My understanding is that we proceed this way with all types of legislation where it amends older legislation and one uses the same forms of wording. That being said, if what the Deputy suggests can be done, without causing confusion, I have asked the officials in my Department to consult the parliamentary counsel to see if it can be done. If it can be, I will be only too delighted to do this unless there is some compelling reason to the contrary. However, I am still awaiting that advice for which I asked a short time ago.

As it stands, the Bill is confusing in this regard. It gives the impression that we are only preparing male prisoners for release and there is no reference to female prisoners. Furthermore, there is no explanatory provision at any stage to give an idea that it is a generic term, intended to cover both male and female. Since the 1993 Act requires that the matter be dealt with in this fashion, if the Minister of State can achieve his intention, I would be delighted.

Deputy Costello is scoring well, potentially.

Even if I do, I would point out to Deputy Costello that much of the 1960 Act remains unamended and those sections will not be gender proofed.

No, but we should ensure we do not be introduce a new Bill which is not gender proofed. We should ensure it is. We must also ensure there is no confusion in its intent. There is confusion in regard to its intent because it only refers to one gender.

The Oireachtas could amend all of the other sections of the Act——

At least let us know that when we pass this Bill, we intend to apply the criteria for release to men and women.

Would it not be possible, since this is an amending Bill, to include a reference to amend those sections of the 1960 Act in order that not just this part is gender proofed, but the existing Bill too? It might require the Minister to come back with a series of minor amendments. I do not think the Opposition would object to 500 or so amendments.

In response to Deputy Ó Snodaigh, I would prefer that approach. One must read the 1960 Act and this Bill together. It would be invidious and could lead to confusion if some pieces of the package which are to be read together are gender proofed and others are not. I will consider this.

I agree with Deputy Ó Snodaigh that it is a better way to do it. Rather than amending what is here, we should amend the entire 1960 Act.

Amendment, by leave, withdrawn.
Amendment Nos. 8 and 9 not moved.

I move amendment No. 10:

In page 3, line 32, after "Síochána" to insert "or any other authority concerned in the enforcement of the law, including an authority of another jurisdiction,".

The Act states that the Minister may direct that a prisoner be released for the purpose of "assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence". I propose to extend this to "any other authority concerned in the enforcement of the law, including the authority of another jurisdiction." We have another Bill on the way which deals with police co-operation in relation to Northern Ireland and I know some have concerns about its application: there are sensitivities involved. However, it is possible, particularly now that there are many non-nationals in prison here, that we could find ourselves dealing with Interpol, the European Union or other external bodies as well as the PSNI. We could also find ourselves dealing with the Office of the Director of Corporate Enforcement, which is not part of the Garda Síochána either. If temporary release is to be given to assist in the prevention or detection of crime or offences, why not extend it to the various jurisdictions in which it could be applicable? There might be circumstances in which it would be appropriate that a jurisdiction other than that of the Garda Síochána could become involved - the Office of the Director of Corporate Enforcement being a relevant example within Ireland. My proposal, which is helpful to the Minister, would give him greater flexibility and widen the scope of the provision as long as it was in the interest of public policy.

In relation to the points made by way of example by Deputy Costello, the Garda is a member of the Directorate of Corporate Enforcement. Therefore, the provision will apply where the prisoner is to be released for purposes relating to investigations by the Director of Corporate Enforcement. The office comprises nine executive and clerical staff plus seven members of the Garda Síochána who assist with the criminal investigations and prosecutions of the office. My advice is that the investigations by the Director of Corporate Enforcement will fall within the terms of this temporary release Bill.

The amendment proposed by Deputy Costello seems to be too general in nature and might give rise to complications. The Garda has overall jurisdiction in the prevention, detection and investigation of offences. In allowing this amendment we might only serve to add confusion to the situation. The Deputy will be aware that nowadays there are many statutory bodies which have a role in law enforcement: for example, the Health and Safety Authority has the power to prosecute summarily. I presume it is not intended to allow prisoners to be temporarily released to assist the Health and Safety Authority.

As regards making a person available for the purpose of investigations that involve another jurisdiction, procedures are already in place for mutual assistance under section 53 of the Criminal Justice Act 1994 to cater for such situations. In addition, those procedures will be supplemented and built upon by the Criminal Justice (International Co-Operation) Bill, which is in the process of preparation. That Bill will give effect to a number of EU instruments and the Council of Europe agreement on mutual assistance. These instruments contain provisions on the temporary transfer of detained persons to other states or territories to assist in investigations. It is expected that the legislation to give effect to these provisions will be published early in 2004. Therefore, I do not propose to accept the amendment.

If the matter is to be covered in legislation, it seems that this is the most appropriate Bill in which to specify the provisions. This is the Bill that deals with all the criteria relating to the temporary release of prisoners. Whether some past or future Bill may contain additional criteria, this is the time to make this as thorough and comprehensive a Bill as possible. Obviously, the provisions may be repeated in the context of a different type of legislation, but this is specifically about the temporary release of prisoners. If there is something in the pipeline that also has to do with establishing criteria for the release of prisoners, it should be included in this Bill as it would be particularly appropriate to this legislation.

The Bill to which I referred, which is in preparation, only relates to foreign jurisdictions. It would be best to deal with this issue separately. The advice I have is that the amendment is inappropriate for this Bill. The matter will be dealt with in the legislation to be published in early 2004.

I will not press the amendment. This section states the Minister "may" exercise this power. The Minister is not compelled to do anything. The amendment would only give him or her a wider scope. If the matter is to be dealt with in future legislation, why not have it here in the context of the Bill that deals precisely with the release of prisoners? It seems to be a more logical way of doing things.

We have already discussed the Garda Síochána (Police Co-Operation) Bill 2003. Would it be possible to include a reference to the Garda Síochána and the PSNI? Would Deputy Ó Snodaigh agree?

No. If we were to include this reference, it would have to deal with Europe, referring to Europol and so on. There would be implications if the wording was left as vague as it currently is.

I would also like to specify the PSNI. We are talking about co-operation between police forces.

The Deputy will not press the amendment on the basis of——

I would like the Minister to reconsider this matter, because it seems that this is the appropriate place for something like this. If we are to gather all the criteria together in one provision, let us have it where it is accessible, rather than scattered around various Bills. Any Minister should welcome the idea that he or she could look up a three page Bill to find all the criteria under which he or she may consider the temporary release of prisoners.

I am always prepared to look at anything, but my present view is that it would be better dealt with in the Bill that is coming. I will consider what Deputy Costello has said.

Amendment, by leave, withdrawn.

Amendment No. 11 has been ruled out of order.

The Minister of State is considering the matter dealt with by amendment No. 12.

Amendments Nos. 11 and 12 not moved.

I move amendment No. 13:

In page 4, lines 5 to 10, to delete paragraph (c) and substitute the following:

"(c) where, in the opinion of the Minister, the temporary release of the person would be in the interests of public policy,”.

This to my mind is an extraordinary paragraph which I did not expect to see in the legislation. Anyway, it is there and needs some amendment. Otherwise, it will make a laughing stock of the legislation. Paragraph (c) states “the Minister may release somebody where, in the opinion of the Minister, it is necessary or expedient in order to ensure the good government of the prison concerned and maintain good order.”

I always thought the reason we sent people to jail was to maintain the good government of society and law and order. If we were to release people from prison and into society in order to maintain the good government of the prison, what would that say about the prison regime and our policy? If one thinks about it for a moment, there is something totally contradictory about this. The whole purpose of prisons is to keep people who are a danger and threat to society out of society, to lock them away in order that the threat does not remain. If the Minister is of the opinion that the good government of the prison is improved by letting people out, he will let them out into an unsuspecting society for depredations and so on, and if they are a threat to the good order of the prison then, by God, they must be a really serious threat to the good order of society.

The other aspect of this - humane and just management of the prison - is fine, but if all of that is at risk because these serious types of offenders are inside, and the only answer the Minister has is to let them loose on society, we have a particular difficulty. I am proposing an amendment to try to save his blushes. My amendment provides that the section containing the words "where, in the opinion of the Minister" would be deleted and replaced with "the temporary release of the person would be in the interests of public policy." My amendment does not contain the contradictory principles enunciated in the existing legislation.

With regard to a parole board, this is germane. One of the reasons parole works - I disagree with Deputy Costello - is that prisoners understand there is a structured parole system. It allows the managers of prisons to keep order. If the prisoners understand there is a clearly defined, structured parole system, it allows prison governors to keep order within a prison.

We are talking about good policy. The Minister must address the issue of putting a parole board on a statutory footing. I am not suggesting the Government is politicising the issue but the danger is there and the Minister must address it. His predecessor, Deputy O'Donoghue, alluded to this some time ago. I ask the Minister of State to comment on what Deputy O'Donoghue said in the past and whether the Government has any plans to look at this and put a parole board on a statutory footing.

Deputy Costello is grossly over-simplifying the situation. The provision he wishes to replace provides that a person may be temporarily released where, "in the opinion of the Minister, the release is necessary or expedient to ensure good government of the prison concerned or to maintain good order and the humane and just management of the prisoner concerned." The provisions have been included in the Bill to provide for situations such as overcrowding, for example.

Happily, as the Deputy will be aware, the problems of the past, where a persistently high level of overcrowding resulted in the granting of release in an unstructured way - the so-called revolving door system - are now largely a feature of the past due to the provision of extra prison spaces. Although the current system does not give rise to such a requirement, it would be short-sighted not to provide for such a situation in the future in the primary legislation governing temporary release in case events were to occur, even if short-term in nature, which would require such a provision, particularly in relation to a specific prison or location.

While this provision sets down a purpose for temporary release, a person cannot be granted temporary release if, due to one of the considerations set out in subsection (2), it is not considered appropriate. For example, if one looks at subsection (2), it provides that the Minister must have regard to the nature and gravity of the offence for which a prisoner was convicted; the sentence imposed; the potential threat to the safety and security of members of the public should the person be released; the risk of the person failing to return to prison at the end of the period of temporary release; any reports from the Garda, prison governor and so on; and the risk of the person committing an offence during the period of temporary release.

Subsection (3) goes on to state that if the Minister considers that any of these individuals pose too much of risk, then he is statutorily precluded from giving a direction. The Deputy's amendment proposes that this provision be replaced with the words "in the interests of public policy". This is a very broad term which is imprecise in its nature. One of the purposes of this Bill is to ensure transparency by clearly and precisely setting out the principles and criteria governing temporary release. It is, therefore, important that this provision is specific enough to be clear in its application and purpose.

As Deputy Deasy will be aware, the parole board has been established on an ad hoc basis, and when this happens, legislation usually follows sooner or later to put the body on a statutory basis. According to my information the parole board was established on an ad hoc and administrative basis in April 2001, replacing the sentencing review group. It advises the Minister for Justice, Equality and Law Reform on the administration of long-term prison sentences. When the Minister announced the establishment of the board, he indicated that consideration would be given to setting up the board on a statutory basis in the light of the experience gained while it existed on an administrative basis. I presume he is still taking soundings on that matter to determine whether he should proceed with legislation to establish it on a statutory basis. It is fair to say the intention of the Government is ultimately to establish the board on a statutory basis, but if one is drafting legislation to put a body on a statutory basis, the experience gained while the body is operating on an administrative basis will obviously be of assistance in drafting the legislation.

The Minister's of State's reply on the text is not very convincing. Words are what they are, not what the Minister of State wants them to mean. Anybody reading the words "to ensure the good government of the prison concerned and maintain good order" would not conclude that this equals overcrowding. It does not mean overcrowding. It means the good government of the prison. If the Minister of State wants to say the reason the Minister would release somebody is overcrowding, why does he not use the word "overcrowding" in the Bill? He does not want to do so because he knows that it would not be publicly acceptable to say it, but he will say it to us on a sort of nod, wink and a nudge basis that this is what he intends - that there has been a revolving door and that there may be again. This is certainly likely given the way the prison numbers are increasing. The Bill reads quite bluntly, "to ensure the good government of the prison concerned and maintain good order."

There is something very strange about releasing somebody from prison for those reasons when the whole purpose of sending them to prison is to maintain the good order and good government of society. The Minister of State would be better off using a better euphemism to the one used in the Bill because it certainly does not translate to me as meaning overcrowding, and it would not translate in this way to any ordinary person looking at it. It is a different matter when he interprets the phrase as meaning overcrowding, but in practice, what is in the legislation is not his interpretation. It looks very bad and the Minister of State needs to have a look at the wording again and rework it in a more delicate fashion. Perhaps the words "in the interests of public policy" would cover it.

The phrase "to ensure the good government of the prison concerned and maintain good order" may cover overcrowding, but it certainly could be construed to cover many other issues also. It is a broader phrase. If the section was deleted and something similar to my proposal was introduced in the interests of public policy, this would allow the Minister to release people when there was serious overcrowding but not to say so to the public. If any members of the public were to read this and see that people were being released from prison because they could not be kept in good order, they would say "bonkers".

The Minister of State is saying it is the Government's intention to look at this but he represents the Government and we are asking him to consider putting the legislation in place. We want him to proceed with this and proceed with the undertaking given by the former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue.

This is not an appropriate solution for overcrowding. We have one of the highest rates of incarceration in Europe. We need other legislative and policy measures to deal with overcrowding in our prisons. Even on an economic basis, the cost of maintaining people in our jails has been shown to be the highest in the world. The public is not getting value for money because the prisons are not doing the work for which they were established. We have the highest rate of reoffending in Europe and this should not be the method used to deal with overcrowding. The subsection should be deleted because it could be open to abuse.

We need other measures such as the mental health courts, and new methods of dealing with young offenders especially, rather than incarcerating and institutionalising them. We need to make sure they are not in prison in the first place. Proper planning would allow for enough prison spaces to deal with a reduced number of offenders. That is where the Minister and the Department need to focus their attention. Deleting this subsection would not damage the Bill or what the Minister is trying to achieve. I concur with Deputy Costello that this section should be deleted. There does not seem to be a need for another paragraph to be submitted in its place. What is there covers most eventualities and the deletion of paragraph (c) should be sufficient.

I would be horrified to think that we would allow desperadoes out into society because of prison overcrowding. That happened only when the Labour Party was in office. We have moved away from that now and provided the extra prison spaces. Deputy Costello seems to contradict himself because he is saying that this phrase covers a multitude. He concedes that it covers overcrowding but he says it can cover many other things too. That is the way it should be because we must have a certain amount of flexibility. Lord only knows what his phrase covers. It is not just a question of overcrowding. If there was a fire in a prison, for example, it might be necessary to release some people on a temporary basis quite quickly. There are situations which we cannot envisage sitting around this table. As we are talking about temporary release from prison, I prefer to be as specific as possible. The wording in the legislation proposed is much more specific than this vague public policy requirement put forward by Deputy Costello.

There can be overcrowding in several situations, for example, a number of people might be put in prison together in the context of rights when a large group has to be shunted into a prison that is already practically full. People can be released only when the Minister has regard to all the matters set out in subsection (2) which provides adequate protection for society and ensures people likely to offend when they come out, or people who constitute or present a danger to the public will not be released. If one looks at subsection (3), the latter cannot be released. The Minister is statutorily precluded from releasing them. Therefore, the wording we have is the best in the circumstances.

The wording looks straightforward, "to ensure the good government of the prison" and says people are being released for that purpose and to maintain good order. The Minister of State can put any angle or twist on this but how can he justify releasing people from prison to maintain the good order of a prison or to ensure the good government of the prison? The purpose of putting people into prison is to maintain good order and good government in society but the Minister of State is saying he will release them for the opposite reason, to maintain good order in the prison and good government. That is not what happens in practice. For example, a difficult prisoner may be transferred from Mountjoy Prison to Spike Island. The Department of Justice, Equality and Law Reform uses a carrot and stick approach.

I am proposing this amendment to save the Minister of State's blushes. If the media is listening to what is going on here and the word goes out that the Minister of State will release convicted offenders who have gone through the District, Circuit and Criminal Courts to maintain good order in the prison, everybody will laugh at him. I am giving him a way out of becoming a laughing stock by saying he can include a phrase which would cover the eventuality that a person could be released in the interests of public policy. He should look at this again before he insists on that phrase being included.

In support of Deputy Deasy's comments about the parole board and the parole process, we understood this would have been done on a statutory basis by now because the Minister said this more than two years ago. Nothing has happened to provide legislation, there are no heads of Bill and there are no provisions being put before the Cabinet. There are no hard proposals. An ad hoc administrative structure was put in place and it was left at that.

There is disappointment that this is not bedded into some formal statutory mechanism because every single thing is done at the discretion of the Minister and there is no broader policy board looking at sentences on a statutory basis. The purpose of this legislation was to ensure we had the conditions and the criteria for release embedded on a statutory basis. There was concern that they were frail, as the proposals from the Attorney General put it in terms of constitutionality, and that the State could be liable in cases where there were no proper criteria. The Minister still retains all the discretion in this matter and we still do not have a statutory parole board. It is an important point. The Minister should come back to the committee to tell us that substantial work is taking place and that there is a timescale.

I disagree with Deputy Costello on one point. If prisoners do not understand there is a system in place for them to be released, the governance of a correctional facility can become unsettled and difficult. If there is not certainty in the case of the parole board, there is a danger that prisoners might become unsettled. We are to provide certainty and procedures for the release of prisoners. We have to take it a step further because there is not the requisite clarity and certainty in the area of parole. The Minister of State made this argument with Deputy Costello but it has to be taken a step further when talking about parole. That is the reason I am talking about not having the parole board on an ad hoc basis. It has to be on a statutory footing.

The Minister of State used the words "in the event of fire" while another Deputy mentioned a riot where it would be appropriate. It might give encouragement to those who would start fires or initiate a riot but not directly take part. The view might arise that this would be a way out for those who know that if they do not take part in a riot or start a fire, they will be released while the ones involved will be transferred elsewhere. If the Bill is to be that specific in maintaining good order, it can be misused by those in prison in order that they can be released. It should not be in the Bill and should not be a method of dealing with overcrowding which the Minister said it was. There are other ways of dealing with overcrowding. The parole board and anything that keeps young people out of jail to be dealt with in society through parole, work and curfews saves the State money rather than leaving people to become criminalised, institutionalised, reoffend and end up back in jail.

We must look at what this legislation is about and what it intends to achieve. Since the foundation of the State prisoners have been released on a temporary basis according to an informal ad hoc system. We are now putting that system on a statutory basis. It is important that we be as specific as possible. If we take subsections (1) and (2), the Bill covers more than overcrowding. Sudden overcrowding, as in the example I gave, is what we had in mind. There are other situations such as where Garda intelligence might communicate that there is an internal threat. I do not understand Deputy Ó Snodaigh's point about a fire in a prison. The perpetrator is hardly going to be the person who will benefit from early release.

He does not necessarily have to. The way it works in prisons, the perpetrator can get others to start it and through a deal get released.

I take the point. However, if we are to legislate on the basis that somebody might do something nefarious if we do not legislate for their point of view, I do not know what road that will lead us down. It is important that we are specific. I stand over the wording as it covers a range of situations which could arise in the future. There is a certain amount of flexibility but it is also sufficiently specific. The current parole board operates on an ad hoc basis and its power lies in the fact that it recommends. Final discretion rests with the Minister. People are assuming that if we put the present system on a statutory basis, it will automatically change. When Deputy O'Donoghue committed the Government to the establishment of a parole board on a statutory basis, he did not go so far as to promise this. That is subject to my checking it out, but I do not believe he went that far. Deputy Deasy claims I am the Government. Unfortunately, it is not a one-man dictatorship. I am a Minister of State in the Department of Justice, Equality and Law Reform in the Government. I will communicate the views of the select committee to the Minister for Justice, Equality and Law Reform on setting up the parole board on a statutory basis. Then I will be in a better position to reply on Report Stage to the specific questions, or if the select committee wishes I can get the information and communicate it directly.

We would all like to have the information. We have amendments on the issue which were ruled out of order.

We will arrange to communicate with Deputies Deasy, Costello and Aengus Ó Snodaigh.

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

Amendment No. 14 is deemed out of order.

Amendment No. 14 not moved.

It is proposed to discuss amendment Nos. 15 and 16 together. Is that agreed? Agreed.

I move amendment No. 15:

In page 4, line 11 to delete "if he is satisfied" and substitute "where the Minister is of the opinion".

Amendment No. 16 in the name of Deputy Costello is a sensible proposal. However, on the advice of the office of the parliamentary counsel, I am proposing this amendment. Instead of the Deputy's wording "if in the opinion of the Minister", the advice received has suggested we use the formula "where the Minister is of the opinion". In substance, they are the same. The advice we are given is that this is a better way to say this. We thank the Deputy for his useful suggestion.

Put it in the Official Report forever.

He also said "sensible."

Amendment agreed to.

Amendments Nos. 16 to 18, inclusive, are deemed out of order.

Amendments Nos. 16 to 18, inclusive, not moved.

Amendments Nos. 19, 22 and 31 are cognate. It is proposed to discuss them together. Is that agreed? Agreed.

I move amendment No. 19:

In page 4, lines 14 and 15, to delete "subsection (1)" and substitute "this section".

These are technical drafting amendments recommended by the parliamentary counsel. They are in conformity with the wording used later in subsection (4) to ensure consistency with the phraseology.

Amendment agreed to.
Amendment No. 20 not moved.

I move amendment No. 21:

In page 4, between lines 29 and 30, to insert the following:

"(f) any representations made by or on behalf of a person who was a victim of an offence to which the sentence of imprisonment concerned relates or who was a victim of any other offence committed by the person concerned, or any representations made by or on behalf of a member of the family of such a victim,”.

Before the Minister gives his direction to release someone, he must look at the gravity, nature and period of the offence. We should include a further category or condition which would relate to any representations made by or on behalf of a person who was the victim of an offence to which the sentence of imprisonment concerned relates, or who was the victim of any other offence committed by the person concerned, or any representation made by or on behalf of the member of the family of such a victim. The idea would be to bring the victim into the picture when considering the release of prisoners.

There are many serious offenders in prison for crimes involving child pornography, sexual offences, murder and rape, and many terrified people in the community. There is a great deal of worry that somebody who might have committed a serious offence, and been in prison for a number of years, would be released on a temporary basis or otherwise, and return to that community. We hear anecdotal evidence daily of victims coming face to face with people they thought were locked up, and were, but who had been released without the victim's knowledge, because of the nature of the temporary release system. I have received a considerable number of representations from victims who express concern about this, and I have forwarded the representations to the Minister for Justice, Equality and Law Reform.

It is important that there is formal statutory recognition that the victim has rights in terms of being heard, prior to the release of a prisoner. I am talking about a prisoner who could be released for a heinous offence of a personal nature, personal assault in particular, with severe injury caused, or terror, or fatality. This amendment would allow for due cognisance of any representations made by a victim or a member of the victim's family.

I fully appreciate the concerns underlined by the proposed amendment. The Minister for Justice, Equality and Law Reform is very conscious of the plight of victims and the potentially devastating consequences of some offences. As Deputy Costello is probably aware, the Irish Prison Service does not automatically inform victims of temporary release, as experience has shown that many victims of crime do not want to receive such information as it may serve only to bring back the hurt and pain experienced. However, a system is in place whereby a victim may ask the Prison Service, through the prisoner-victim liaison officer, to be notified if an offender is to be given temporary release, and such requests are complied with.

In addition, the Prison Service will, if requested by the victim of a serious sexual or violent offence, notify the Garda prior to release of the perpetrator from prison, either on temporary release or at the end of his or her sentence. The rights of the victim are also acknowledged at the time of sentencing, where in the case of a sexual offence within the meaning of the Criminal Evidence Act 1992, or an offence involving violence or the threat of violence to a person, the court is obliged in accordance with section 5(1) of the Criminal Justice Act 1993 to take into account any effect of the offence on the person against whom it was committed. This is usually done through the submission of a victim impact report and, if the victim requests, his or her evidence as to the effect of the offence.

In operating a system such as temporary release it is important that it be objective and transparent, and that it operate under specific criteria. That is the purpose of this Bill. No system of temporary release can be risk free. The key is to balance possible risks against possible benefits. The alternative is to opt for a regime where there is no possibility of temporary release. I am sure the committee will acknowledge that this would not be a very humane prison regime and could have other consequences.

Under the Deputy's amendments, it would be very difficult to operate a temporary release regime. It is likely that a large proportion of representations by or on behalf of victims would set out reasons the person should not be granted temporary release. Nor would it be appropriate to provide for a system where the views of a victim of a previous offence, for which a sentence has been completed, could be taken into account at a later date for a separate offence.

Under subsection (3), a prisoner cannot be granted temporary release if the Minister is of the opinion that for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate. It is also important to remember that temporary release is not an entitlement and, if granted, does not confirm an entitlement to future releases.

I am concerned that there is no automatic system of notifying victims of an impending temporary release. I understand the reasoning. Some victims might not want to know. It is important - I have communicated this to departmental officials - that we include a provision in primary legislation that a victim should be informed unless he or she decides to opt out. There should be an opt-out mechanism.

On the substance of the other part of the amendment tabled by the Deputy, it is my experience that in practice, victims make representations, which are presumably read and responded to. The difficulty the parliamentary counsel has with the amendment relates to subsection (2), under which it would fall. It reads, the Minister "shall, before giving a direction" - that is, the Minister would be statutorily obliged to take into account something said by a victim. One could, for example, have a situation - though I am not suggesting this would be a widespread practice - where all the conditions are in place to allow someone temporary release, which the authorities approve, saying it would help in the rehabilitation of the prisoner and his or her reintegration into society. The victim could then put something in writing, threatening suicide, for example, if the prisoner was released. That could give rise to serious consequences. It is a difficulty.

In addition to what I have said about providing in primary legislation for automatic notification, unless the victim chooses to opt out, I have thought about providing an extra paragraph in the Bill on Report Stage to state the Minister "may also" take into account representations on behalf of victims. This would also cover the other amendment made by the Deputy, referring to representations made "on behalf" of victims, not merely by the victims themselves. It would certainly go quite a distance to meet the substance of what the Deputy wants and could avoid the difficulties of just including it as a further paragraph under subsection (2).

I welcome what the Minister of State is saying. Subsection (2), while it states the Minister "shall, before giving a direction", goes on to state the Minister "shall have regard to". That does not mean he is obliged to act on it, but that he must listen to and read and see any representation made. As the Minister of State admits this is happening on an informal basis, why should we not formalise it? In the process, there is an offender and the person who has been offended. If we look at all considerations in determining our criteria for allowing a prisoner to be released, the one consideration we decide to omit is the victim. Is that not saying something about a certain insensitivity in our system? The Minister suggests bringing forward the consideration in some back-door fashion, or implies that since it is already allowed for in an informal fashion, that is good enough. It is not. We need to put it on a statutory basis that the victim has a right to be heard and make recommendations, and that the Minister has an obligation to listen to those recommendations, concerns or worries. There is no reason he could not put in place a condition specifying that a prisoner on temporary release should not go anywhere near the vicinity of the victim. There can be conditions which, as we discussed, can be specified. The point is that if we simply omit the victim as a specific category - the victim is central to the whole offence - we are doing an injustice. I do not mind how the section is phrased, but this seems the appropriate one for the issue in which to appear. The Minister might come back to us with a different phraseology that involves consideration of representations from the victim or family members of the victim, perhaps a recommendation that they be taken into account when any decision is made. I would be happy with this.

When I looked at the Bill, I recognised that this was happening informally. Our intention, as I understand it, is to put what is happening informally on a formal statutory basis as far as possible. I am personally committed to ensuring the victim's voice is heard. We will examine the mechanisms to do so. If we can do so in the way suggested by the Deputy, we will do so on Report Stage. I am also concerned that the victim should automatically be entitled to be informed about impending early release, unless he or she wants to opt out of that system. There should be a mechanism provided to enable him or her to do so. We must avoid any difficulties that might arise. Sometimes the victim is not contactable. Perhaps we will need to phrase the legislation to state every reasonable step must be taken to contact the victim. I intend to make some changes on Report Stage.

Will the Deputy withdraw the amendment on that basis?

Yes, as long the replacement is satisfactory.

The Deputy will be the judge of that when it comes through.

It should be central. I take on board exactly what the Minister of State has said, namely, that it is not simply a question of taking into consideration recommendations or submissions made by the victim or the family of the victim, and that the victim should be aware of when someone is being released. That type of courtesy and consideration is important and should be put on a statutory basis in order that we can avoid some of the terrible situations that arise.

We must take into account the Minister of State's commitment in that regard. On that basis, is the Deputy prepared to withdraw his amendment?

Amendment, by leave, withdrawn.

There is a vote in the Dáil. We have only three more substantive amendments to get through. Perhaps we might return after the vote to try to finish them.

I have a meeting at 2 p.m. for which I will be late if we return.

Perhaps we might agree on another time. We only need about 20 minutes.

I am certainly willing and anxious to facilitate the Minister of State. Perhaps we might find a time later today.

Unfortunately, I will not be around later today. We have only about half an hour's work to do. Could we deal with it next week, perhaps on Thursday?

We will check with the Minister's office in that regard.

Progress reported; Committee to sit again.
The select committee adjourned at 1.45 p.m. until 9 a.m. on Friday, 13 June 2003.
Top
Share