Dáil Éireann Debate, Tuesday - 9 October 2007
129 Deputy Damien English asked the Minister for Justice, Equality and Law Reform his views on the concept of allowing the Director of Public Prosecutions or the prosecutor make oral submissions during a court sentencing hearing; and if he will make a statement on the matter. [22558/07]
View answerThe Deputy will be aware that the Agreed Programme for Government contains a commitment to allow the Director of Public Prosecutions to make submissions at the sentencing stage in criminal cases. In considering how to proceed with this issue, we are fortunate to have the Report of the Review Group on the Balance in the Criminal Law, which was chaired by Dr Gerard Hogan, SC and which was published in March this year. The question of prosecution submissions was one of the topics considered by the Review Group. At the outset of its considerations, the Group noted the perceived anomaly which arises in the context of the existing right of the prosecution to apply for a review of sentence which the Director of Public Prosecutions believes to be unduly lenient, on foot of section 2 of the Criminal Justice Act 1993. In essence, in reviewing an unduly lenient sentence the prosecuting counsel are called upon at an appeal under section 2 to make a submission in order to influence the sentencing decision. It might appear to some that there is a contradiction in allowing such submissions at the appeal stage but not at the original sentencing stage.
However, this issue is not quite as clear cut as one might think. As the Review Group highlighted in its report, it is incorrect to suggest that under the current regime prosecution counsel have only a limited role in the sentencing decision of the court. At present there is a restriction on delivering an actual sentencing submission to the court. However, prosecuting counsel have ample opportunities to present evidence to the court during the course of the trial that would constitute an aggravating factor in the sentencing decision. Conversely, prosecuting counsel may also challenge evidence presented by the defence side regarding mitigating factors.
Indeed the Director of Public Prosecutions' most recent Guidelines for Prosecutors (June 2006) states that prosecuting counsel have a duty to ensure that the court has before it all available evidence relevant to sentencing, all submissions concerning the impact on the victim in accordance with the provisions of section 5 of the Criminal Justice Act 1993 and all relevant evidence relating to the accused's background, circumstances and previous convictions.
The Review Group examined five options on the role of the prosecutor in the sentencing decision of the court. These options are as follows:
1.A purely declaratory provision which restates the current position, permitting the prosecutor to adduce and challenge evidence at the sentencing stage and to give information to the court regarding sentencing precedents at the request of the court.
2.A slightly more expanded version of option 1 which would allow the prosecutor to also volunteer information regarding sentencing precedents whether this was requested by the court or not.
3.The prosecutor would be permitted to volunteer previous precedents and to make submissions to the court as to the aggravating factors, but without advocating a particular sentence or range of sentences.
4.The prosecutor would advocate a range of sentences.
5.This envisages a completely permissive regime whereby the prosecutor would be allowed to advocate a particular sentence.
Option 1 reflects the position as stated in the DPP's Guidelines for Prosecutors while Option 5 represents the other end of the spectrum whereby prosecuting counsel would advocate a defined sentence.
The Review Group favoured option 2, to allow the prosecutor to volunteer information regarding sentencing precedents whether requested or not by the court. The Group also recommended that option 3 be kept under review by my Department in consultation with the DPP.
Reflecting the complexity of the issues involved, the Group stressed the need for the availability of greater information regarding sentencing. To this end, the report expressed support for the developments being carried out by the Irish Sentencing Information System project under the chairmanship of Ms Justice Susan Denham of the Supreme Court. The Group was also clearly of the view that there would be some benefit from the Court of Criminal Appeal or the Supreme Court developing guideline judgements, where a number of appeals concerning the same offence would be heard together and a general guideline judgement given, indicating the approximate median on the scale of severity and the factors that might influence an upward or downward adjustment.
The issue of sentencing submissions by prosecuting counsel is complex and will require further careful consideration and consultation by me in advance of any legislative action.
