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

SECTION 2.

I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials.

I move amendment No. 22:

In page 4, lines 33 and 34, to delete "subsection (1)" and substitute "this section".

Amendment agreed to.

I move amendment No. 23:

In page 4, between lines 37 and 38, to insert the following:

"(h) any representations made by or on behalf of the person,”.

I welcome the Minister of State and his officials. This is part of a list of amendments that will improve the legislation. Amendment No. 21 proposed that consideration be given to representations made on behalf of a victim of an offence. While the Minister of State, Deputy O'Dea, had some reservations about it on the last occasion we met, he was reported in the media over the weekend as taking some credit for it. He may be a late but welcome convert.

The Minister would want to catch on to that.

One must be fast to keep up with the Minister of State from Limerick.

I gave up a long time ago.

This amendment provides that the Minister, before giving a direction on temporary release, should give due cognisance to any representations made by or on behalf of the person. It is normal for prisoners to write to the Minister and make approaches to politicians about their circumstances. They often want their circumstances of a humanitarian, compassionate or employment nature, to be channelled through a person of some standing, as they see it, to assist them in getting temporary release. These should be taken into consideration regardless of whether they are made by the person or on his or her behalf. This is already done on an informal basis and should be put on a formal basis. The purpose of this legislation is to give a statutory structure to the criteria for the consideration undertaken by the Minister in making a judgment as to the reason and how prisoners are released. It would be worth including this in a formal fashion also.

As Deputy Costello is aware, the granting of temporary release is not a right but a privilege for which the person serving the term of imprisonment can apply and which is granted at the discretion of the Minister. The Deputy's amendment proposes that the Minister should have regard to representations made by the prisoner or on his or her behalf. Representations made by the prisoner are dealt with under the current system whereby the prisoner sets out the reasons temporary release is sought and may include other information or facts which he or she considers relevant to the application for temporary release.

The amendment proposed by the Deputy regarding representations on behalf of the prisoner could lead to the Minister having to consider representations made in all cases regardless of their bona fides. The amendment would impose a legal requirement on the Minister to examine correspondence. That could lead to imposing an unworkable burden on the Minister and ultimately would be a recipe for chaos. Accordingly, I do not propose to accept the amendment.

This represents a sledgehammer to knock down a helpful amendment.

We have a vigorous Minister.

If the Minister had to read correspondence, it would be a recipe for chaos. However, he or she already has to take due cognisance of all the other matters. He or she must consider the nature and gravity of the offence, the period of the sentence, the threat to safety, the conduct of the person, or any recommendation made by the governor of the prison, the Garda Síochána, a probation and welfare officer or any other person whom the Minister considers to be of assistance. The Minister is already engaged in this process. To think that by adding a representation by another person such as a politician who represents the area from which the prisoner comes or who might know the family, would result in chaos is going over the top. It is happening already and is a normal part of everyday procedure.

The Taoiseach is on the record as engaging in this on a regular basis, as we all know. He talks to the Minister for Justice, Equality and Law Reform about certain people from his constituency who have been prisoners. I do not see where chaos comes in. All the Minister has to do is to have regard to such representations. That is the extent of the commitment.

We all know that every time a prisoner is released, whether on a temporary basis or otherwise, the Minister will not pick through the individual file. The matter is dealt with by the officials in the Department of Justice, Equality and Law Reform whose job it is to make the recommendation. All I am asking is that a recommendation regarding this is included as part of the various matters that have to considered. Not including this would leave out a normal representation that is made. This could undermine the thrust of the legislation, which was directed by the Attorney General to cover all the grounds under which a prisoner is released.

Representations made by prisoners form one of the grounds for release. If a prisoner asked somebody to make a representation and that is not addressed in the legislation, it may still be considered on an informal basis by the Minister. If the Taoiseach again contacts the Minister for Justice, Equality and Law Reform to make representations on behalf of a constituent whose family had contacted him, will the Minister say he cannot consider this because it is not covered in the legislation?

I am willing to look at this matter on Report Stage. A case can be made for setting out in express terms in the text, the position of the prisoner himself or herself making representations.

There has to be some caution regarding representations made on behalf of the prisoner. There are considerations of workability in such provisions. The Minister's staff have always performed their duties, in drawing representations to his or her attention, very well. It would set an undesirable precedent to make the correspondence of Departments subject to legislative requirements, but I am willing to re-examine the issue before Report Stage.

That seems fair.

I accept that and will withdraw the amendment.

Amendment, by leave, withdrawn.

As amendment No. 25 is an alternative to amendment No. 24, they may be discussed together.

I move amendment 24:

In page 4, line 39, after "of" to insert ", a person for the time being performing the functions of governor in relation to,".

Having considered Deputy Costello's amendment No. 25, I consider it to be a good one. The proposed amendment's wording is similar to the wording used later, in the proposed section 2(4). The amendment makes sense for practical reasons and reasons of consistency. Having considered the matter with the office of the chief parliamentary counsel, the Government is withdrawing amendment No. 24 and accepting the Deputy's amendment No. 25. I am grateful to the Deputy for his proposal.

Will the Deputy accept that?

I will gratefully accept it.

Amendment, by leave, withdrawn.

I move amendment No. 25:

In page 4, line 39, after "of" to insert ", or person for the time being performing the functions of governor in relation to,".

Amendment agreed to.

Amendment No. 26 is out of order while amendment No. 27 has already been discussed with amendment No. 7.

The Minister has said that he will examine the substantial legislation.

Amendments Nos. 26 and 27 not moved.

I move amendment No. 28:

In page 5, between lines 2 and 3, to insert the following:

"(i) the age and health of the person, such humanitarian considerations (if any) as may appear to the Minister to exist and such efforts (if any) as in the opinion of the Minister have been made by the person towards rehabilitation,”.

Amendment No. 28 is in the same vein as amendment No. 23. It calls on the Minister to consider, "the age and health of the person, such humanitarian considerations (if any) as may appear to the Minister to exist and such efforts (if any) as in the opinion of the Minister have been made by the person towards rehabilitation." The age and health of a person and whether he or she has made any progress towards rehabilitation, as well as any further humanitarian considerations, are basic issues that a Minister should consider in determining whether or not to release somebody temporarily. It is desirable that such aspects should be part and parcel of the body of matters to be considered prior to release.

I appreciate the Deputy's concern in proposing this amendment, but the advice we have received from the office of the chief parliamentary counsel is that the reference to health and humanitarian grounds in the proposed section 2(1)(b) is sufficient to cover the matter. The issue of grounds of health and other humanitarian grounds is already expressly dealt with in this section. A specific reference to age, as proposed in the amendment, might cause difficulty as it could give rise to problems in releasing a prisoner to whom age grounds did not apply. It could have the opposite effect to that intended by the Deputy. A further difficulty with this proposal might be that consideration might be given only to young or old persons, to the exclusion of those aged in between. I cannot accept the amendment for these reasons.

To which subsection did the Minister of State refer?

I referred to section 2(1)(b). The Minister can form an opinion based on the circumstances outlined in the section.

Does the Deputy intend to withdraw the amendment on that basis?

The only ground missing in the section, as it stands, is age.

What did the Minister of State say about that ground? Why has he ruled it out?

The Minister of State said the section could be interpreted as allowing for consideration of the cases of old and young people, but not those in between. There is a problem with this.

It may be considered part of "humanitarian grounds" in that context.

Would it be desirable to include it with "health" as a humanitarian ground?

It could arise, but one can be very healthy at different ages.

Is there any other reason for excluding age?

Would it not be contrary to the Equal Status Act?

It would be for consideration——

The Equal Status Act is not the Constitution. We are legislators.

Yes, but it may be against the spirit of the Equal Status Act.

Spirit will be well addressed shortly under the Intoxicating Liquor Bill. I will not pursue the matter, but ask the Minister of State to re-examine it. It seems it could be considered.

We received very firm advice, but if the Deputy wishes to revisit the matter on Report Stage, that is fair enough.

The Minister of State might give us a word on it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 29:

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

"(j) whether any risks arising on temporary release could be obviated by attaching conditions to the release, by limiting the duration of the release, by directing release during specified hours only in the course of a specified period, or by directing release with escort and with or without personal restraining measures,”.

This amendment is a further attempt to improve the legislation. I am proposing that conditions be attached to the release, in order that questions about whether somebody represents a risk can be considered. If all other matters are equal, I believe the release should not be refused if it is possible to do so under conditions that might ensure the security of the person. For example, somebody may be released under the escort of a prison officer to attend a funeral. This has happened in cases concerning paramilitary prisoners. Another restraining measure might be appropriate in such circumstances. For example, a specific period of time could be laid down or there could be a requirement for the person to attend a Garda station at night.

The circumstances of all prisoners do not fall neatly into the list of considerations included in the Bill. It is sometimes better to release a prisoner from custody, for example, to attend a course or on compassionate grounds. If it is necessary to provide some security measures, in a reasonable fashion, that should be considered. An amendment of this nature may be useful as certain things will probably happen when somebody is out on escort and we might as well include it in the legislation. I refer to something that might not happen on a huge number of occasions, but which happened fairly regularly in the past when people who were regarded as risks were released under certain conditions. This legislation should reflect such events if its purpose is to provide written criteria for the circumstances of temporary release.

Perhaps it is a bit ropy to discuss "personal restraining measures", but we will continue.

The purpose of this amendment is to ensure the Minister would not rule out temporary release because of a risk. As has been said previously, the reality is that temporary release, by its very nature, involves some element of risk, even when conditions are attached. The onus falls on the Minister to seek to minimise such risks as much as possible by attaching conditions suitable to a particular case. That is the reason the considerations which must be taken into account by the Minister before granting temporary release are so important. It is clear that the primary concern regarding temporary release is the safety of the public. The situation envisaged by the Deputy is already covered in the proposed section 2(1), which provides that the Minister can direct the temporary release of any person subject to such conditions as may be specified. Under the system of temporary release, these can be standard conditions which apply to all persons and/or specific conditions relevant to the person concerned.

As the broad provision of section 2(1) already permits the Minister to attach conditions, I do not see any advantage in extending or limiting the Minister's broad discretion in any way by referring to the type of risk or the nature of the conditions that can be imposed. Given the inherent difficulty that has always existed regarding temporary release, it is desirable that the Minister be given the discretion provided for in the Bill, as it stands, to attach such conditions as are appropriate in the circumstances. I do not propose to accept the amendment for the reasons I have outlined.

Is the Minister of State satisfied that the Minister can grant release subject to conditions? Will existing provisions cover a case in which someone is released, not on general conditions to return after a certain period, but handcuffed and under prison officer escort on compassionate grounds to attend a funeral, for example? Is this adequately covered by the existing legislation? There will be gradations of release.

I am satisfied such a case is covered as the Minister is given the discretion. Conferring a discretion on the Minister permits him or her to have gradations. The danger in too extensive a recitation of the gradations is that one narrows rather than extends the power of the Minister to provide for them.

Amendment, by leave, withdrawn.
Amendment No. 30 not moved.

I move amendment No. 31:

In page 5, lines 11 and 12, to delete "subsection (1)" and substitute "this section".

Amendment agreed to.
Amendment No. 32 not moved.

I move amendment No. 33:

In page 5, line 22, after "court" to insert", unless such order is expressed to be subject to such temporary release (if any) as may be directed under this section".

This amendment refers to the provision where a person has been charged with or convicted of an offence and is in custody pursuant to an order of the court remanding him to appear at a future sitting of the court. This amendment seeks to add the following: ", unless such order is expressed to be subject to such temporary release (if any) as may be directed under this section".

What happens if a court is not sitting? Are there grounds for release? Where a prisoner is sick and the court is happy he or she should be released temporarily between remand dates, we would like to give power to the Minister to make this provision where a court is on vacation.

I presume the Deputy is not referring to sentenced prisoners in the context of this amendment. What he sees as a discrepancy, whereby persons on remand cannot be given temporary release——

I mean between the remand dates.

I am sure the Deputy is aware that temporary release can only apply to sentenced prisoners. Under the judicial system, a person charged with an offence is remanded either on bail or in custody for a period or periods after which he or she appears before a court again to have the prosecution expedited or disposed of. Whether to remand in custody or on bail is a matter reserved to the courts to determine. The decision to grant or refuse bail in any particular case is a matter for the courts. It is an exercise of judicial power and courts are independent in the performance of their judicial functions. We cannot, by legislation, provide for temporary release in the case of remand prisoners. A prisoner is brought before the court to answer to a charge and the court has to determine the appropriate remand for the prisoner pending trial. The temporary release system is not designed to address this.

I appreciate what the Minister of State is saying. Where a court has remanded a person whom it is not proposed to remand for an extended period, but then goes into recess, could we provide that the Minister could exercise, on a temporary basis, powers to deal with an illness, or something of that nature, which might arise?

I am not advised on the precise constitutional position and do not want anything I say to be considered an expression of the views of the Minister on this issue. I would be concerned, as a matter of policy, with vesting such a power in the Minister. We are discussing persons who have been returned for trial before the courts on serious charges. The courts have supervision of these persons who are not yet offenders. They have not been convicted. The effect of the Deputy's amendment would be to provide the Minister with a right to interfere with the process of the trial. Quite apart from any constitutional considerations, there would be a serious policy difficulty with travelling down this route.

The question of bail has traditionally been reserved to the courts. The Deputy referred to vacations of the courts, but the bail list in the High Court is a regular event during those as well as during law term. A person who is dissatisfied with the determination of a lower court on an issue of remand has always the option of rearguing the matter in the High Court whose inherent jurisdiction to grant bail he or she can invoke. It would not be desirable to interpose a ministerial discretion into an area relating to the disposal of offenders.

I am on a loser with this one, but circumstances could arise where a court remands a person to custody, but is not unhappy about that person being released for specific occasions, be it the funeral of a spouse or a wedding. This is not a question of the applicant being unhappy with the decision. The person would not seek to appeal to a higher court, which would not interfere with the decision of a lower court in such a case. In such a case, the Minister should have the authority to exercise his right to release a person on a temporary basis.

I do not know if it is possible to make such a provision legally to interfere with a court order. Where a judge has made remarks regarding a person before the courts who is seriously ill or is related to a seriously ill person to the effect that the court would not object to a temporary release, would it not be desirable for the Minister to have authority to take into account the wishes of the court while continuing to remand the person in custody? Otherwise, a legal process of appealing to the High Court would be set in train where a person sought release to attend a funeral.

I am trying to be helpful, but it would be a huge departure in policy to vest the Minister with powers in an area of this nature. The traditional practice, which is founded in good sense, is that when a person is brought before the court on a charge, the court has jurisdiction over him or her. The judicial arm of government is dealing with the person in question who has been charged with a serious offence. I am not aware of any serious difficulty in relation to the availability of judges to deal with the matter.

Deputy Costello referred to the issue of the appeal court and the fact that it might simply follow the decision of the trial court which had seizure of the person charged. The power of the High Court in matters of personal liberty is inherent and it regularly revisits and reviews decisions of the lower courts in relation to bail questions.

The availability of judges is a matter for the presidents of the various courts. A judge would have to be made available in an appropriate case. To permit the Executive to intervene in the handling of a prisoner who is subject to an order of the court pending his or her trial would change the relationship between the Executive and the Judiciary and amount to a significant innovation in our system.

Amendment, by leave, withdrawn.

Amendment No. 34 and amendment No. 1 to amendment No. 34 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 34:

In page 5, to delete lines 33 to 36 and substitute the following subsection:

"(7) (a) Minister may make rules for the purpose of enabling this section to have full effect and such rules may contain such incidental, supplementary and consequential provisions as the Minister considers to be necessary or expedient.

(b) Rules under this section may specify conditions to which all persons released pursuant to a direction under this section shall be subject or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject.”.

The purpose of the amendment is to provide that rules made under this section can specify standard conditions to apply to all persons granted temporary release. This reflects the current position where standard rules apply requiring the person to keep the peace and be of good behaviour and sober habits during the period of release. The second part of the provision is to provide that prisoners being released may have conditions attached to their release which are specific to certain types of offenders. An example of this would be to attach a curfew to the temporary release of a juvenile offender.

The amendment will allow for a more efficient and effective way of operating the system of temporary release and for standard as well as specific conditions to be applied. The Deputy's proposed amendment would take away from the clarity of the Minister's proposal. I hope he will appreciate the thinking behind the Government amendment and reconsider his amendment to it.

I move amendment No. 1 to amendment No. 34:

In the proposed new subsection (7), paragraph (b), to delete all words from and including “or” in the third line down to and including “subject” in the fourth line.

I am not happy with the Minister of State's expression that my amendment would take away from the clarity of amendment No. 34. My amendment would have a much deeper effect than he suggests. I am, however, in agreement with the other elements of the Government amendment.

Effectively, amendment No. 34 would undo the general thrust of the legislation, namely, to ensure all cases involving individuals are dealt with on their merits. The reference to "all persons belonging to such classes of persons as are specified in the rules" in the final sentence of the amendment marks a shift from individuals to classes of persons. This provision will allow the Minister to group together certain classes of people, for example, those jailed for serious offences such as unlawful killing, murder or sexual offences, and refuse them temporary release in all circumstances.

The inclusion of a section on classes of persons runs counter to all other conditions and circumstances governing release, which are based on considering each case on its merits. For this reason, my amendment seeks to delete the clause in question which is contrary to the general thrust of principle in the Bill. It does not give clarity but limits the potential scope of temporary releases and should, therefore, be excluded.

The current section 2(7) is excessively broad and vague. While I accept the Minister's intention, the subsection should be augmented to provide for other matters. In the interests of transparency, for example, it should include a provision to allow for the publication of guidelines on qualification assessment and risk assessment.

The Bill does not state the origin of an application by a prisoner for release on temporary grounds. How will a prisoner go about seeking temporary release? Will he or she make a request to a Member of the House or prison governor who will then forward it to the Minister or will a recommendation be made to this effect? The Minister should introduce rules in this regard. Is provision made for an appeal against a decision taken on a prisoner's application for temporary release? Again, no guidelines are established in this respect in the Bill.

Another point, hinted at earlier, is that the Minister appears to be taking on a great deal of work. If every prisoner was to make an application for temporary release, the Minister would be obliged to deal with each case. Is it possible for the Minister to delegate this task, for example, to the appropriate prisoner governor or the head of the Prison Service? Another option would be to limit the specific categories of offenders the Minister must deal with and provide for the delegation of all others. I will consider tabling amendments on Report Stage to tease out these issues if the Minister does not take them on board now.

It is the Deputy's right to signal his intention to table amendments on Report Stage. There is no appeals procedure because temporary release is a privilege rather than a right and the final call on the issue resides with the Minister. However, to respond to the concern expressed by Deputies Ó Snodaigh and Costello, the whole purpose of the second part of the new subsection is to provide for conditions to be attached to the release of prisoners which are specific to certain types of offender. For example, it will allow a curfew to be attached to the temporary release of juvenile offenders. I fail to see how this could be regarded as a defective power to vest in the Minister. I have no doubt we will revisit this issue on Report Stage and although I am convinced I am right, I remain open to persuasion.

I take a different view of the matter. The Minister should not impose a condition such as subjecting all juveniles on temporary release to a curfew. Conditions should not be applied to a class or category of prisoner as such a provision would run counter to everything else in the Bill and undermine its thrust and quality. I fail to see what purpose would be served in subjecting prisoners to class actions, so to speak, in terms of the application of certain conditions, when the rest of the Bill provides for the assessment of their circumstances and the consideration of all other aspects of their application for release on an individual basis. To apply certain conditions to all those in prison for particular types of offences, for example, juveniles, would limit the Minister. It would not improve the legislation.

This is an important section and I support the statement that rules under it may specify conditions to which all persons released pursuant to the direction under this section shall be subject. The good is taken out of it, however, by providing that these conditions will apply to "such classes of persons as are specified in the rules". Effectively, this amendment ties the Minister's hands, whereas the Minister has been given considerable scope with all the other conditions and circumstances outlined in the previous sections in the context of granting a person temporary release.

I am not opposed to the amendment. I understand and in some ways agree with the notion that the Minister, or the determining body, can impose conditions in individual cases in relation to temporary release. I do not know to whom an application for temporary release is made. Is it to the Minister, the prison governor or the head of the Prison Service? If an application is not granted, however, there should be some form of appeal mechanism.

As our prison population is so substantial, I do not see how the Minister can concern himself or herself with every temporary release. Is there scope for the Minister to delegate some of his or her responsibilities in this regard to prison governors or the head of the Prison Service and for him or her to deal in person with specific categories of offenders?

There is already scope in certain limited cases for the prison authorities to exercise decisions along the lines that Deputy Ó Snodaigh outlined, but the Minister has ultimate power in this matter and that has always been the position.

Having heard Deputy Costello's argument I am more persuaded that we will have to look at this issue. I am prepared to look at the issue of deleting the final phrase, "or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject." While I will press the amendment, it is on the undertaking that I am prepared to examine on Report Stage the deletion of the issue relating to the classes of offenders which Deputy Costello has raised.

I knew that I had something specific on this matter. The Minister of State, Deputy O'Dea, made a reference to a court decision in a speech in 2001 on Second Stage of the Criminal Justice (Temporary Release of Prisoners) Bill.

We appear to have reached agreement on this.

I will refer to it for the benefit of the Minister of State. It refers to a High Court judgment in the Corish case delivered in 2000, the net point of which was that there was no power to refuse to consider temporary release for certain categories of offenders because the 1960 Act did not specify that such a power existed. That was struck on the head in the Corish case. It seems that the Minister and the Department are seeking to bring it in by the back door. The Minister of State might have a look at that judgment.

It would be better if we had a look at the judgment which seemed to be reversing a practice which was in ease of the needs of the Department and the prisoner where there were specified categories who would automatically qualify for temporary release rather than having to give individual consideration to each case. Perhaps Deputy Costello might look at the implications of the judgment also.

We will tell the Minister of State, Deputy O'Dea, to have a look at it also.

Is the amendment being withdrawn on the basis that it will be looked at on Report Stage?

Amendment to amendment, by leave, withdrawn.
Amendment No. 34 agreed to.
Amendment No. 35 not moved.
Section 2, as amended, agreed to.
NEW SECTION.
Mr. B. Lenihan: I move amendment No. 36:
In page 6, after line 17, to insert the following new section:
3.-(1) This Act may be cited as the Criminal Justice (Temporary Release of Prisoners) Act 2003.
(2) This Act shall come into operation on such day as the Minister may, by order, appoint.".
This amendment is a standard provision and makes provision for the Title and commencement date.
Amendment agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

I wish to signal to the committee that I am examining a matter in the Department and may table a further amendment to the Bill. As Deputies are aware, the Bill deals with the Criminal Justice Act 1960, the foundation Act for the detention of offenders in St. Patrick's Institution. A major difficulty has arisen in the context of the implementation of the Children Act but also in the context of the equality standards on the international side in regard to the fact that there is a differentiation in the treatment of male and female offenders where a 16 year old male can be detained in St. Patrick's Institution but not a 17 year old female. This has created a considerable hiatus in relation to the implementation of the Children Act.

I hope I am not treating the Bill as too much of an aircraft carrier but there is a case for having a standardised provision and saying a 16 year old offender in all cases can be remanded to St. Patrick's Institution. It would facilitate the early implementation of a considerable part of the Children Act. It is an issue I propose to examine. I am not promising an amendment but I am signalling that an amendment may be tabled on Report Stage in that regard.

Question put and agreed to.
Amendment No. 37 not moved.
Title agreed to.
Bill reported with amendments.

I thank the Minister of State and his officials for coming today.