Like Senator Gallagher, I dislike the idea of mixing civil and criminal law. There are no precedents for it and I think it will inevitably get us into trouble, although when we consider this situation, we may have to do that to some extent.
Basically, the amendment proposes to allow a judge discretion to decide now what a person's conduct will be in seven, ten or 12 years. There have to be logical objections to that. The present barring order legislation, barring a person from his home, is a serious sanction. Let nobody doubt that, even though it comes from civil law. A barring order is based on a person's conduct at the time. If a person is violent or showing violent tendencies and his wife takes him to the District Court. The court will look at his conduct in the immediate past and decide that person should be put out of the house. This amendment would give judges the right to decide what this person's conduct is likely to be in seven or ten years' time. Barring a person from his house in seven or ten years' time is a considerable sanction. Instinctively I dislike that.
This amendment is proposing a new form of criminal sentence, that is the mixing of the civil and criminal law. In addition to allowing a judge to impose the usual type of sentence by way of fine, community service order or prison sentence, this would allow a judge with criminal jurisdiction to apply another sentence, namely, a future barring order which will come into effect when the person leaves prison.
The Law Reform Commission produced a very detailed consultation paper on sentencing this morning. One definitive proposal made was that there be no new form of sentencing introduced, particularly a form of sanction which has its origin in the civil law. The father of the unfortunate victim in the Kilkenny case is now in prison and she fears for her life and her safety when he comes out. It is said that if we do not change the law on the lines suggested in this amendment, such people will remain fearful even while their relatives are in prison. It is also said that if we do not accept this amendment, that fear will be dissipated. That is not reality.
If a person comes out of prison, such as the father in the Kilkenny case, and he wants to perpetrate violence against the victim or take his revenge, a change in the law to apply an extra sanction, apart from this criminal sanction there already, is not going to stop him. Take, for example, the person convicted in the Kilkenny case. He is now languishing in prison and if, as he lies in his bunk, he is plotting some terrible revenge on his unfortunate daughter when he comes out, is he going to say that if he carries out this revenge he will probably be sent back to prison for the rest of his days? If we accept this amendment he is going to say tomorrow night that he can now be barred from the house, that the judge can issue a barring order against him and that he is going to stop me, therefore I cannot do it anymore? If a person breaks a barring order they can be arrested without warrant. If a person breaks the criminal law they can be arrested, tried and put in prison. An extra sanction is not going to stop him.
Senator O'Toole said that if Government Senators find something wrong in the wording, they should change it and accept it on Report Stage. I prefer to simplify things but there is no point in reducing something to the simplistic, and that is what is being done here. It is not a question of difficulty with the wording, but of a number of logistical difficulties which I will mention.
We have to decide on our approach to this amendment. The suggestion was first made by Deputy Shatter in a Dáil amendment. It would represent a fundamental change in our legal system. We have had a fortnight to consider it, but I am afraid it will require more time. Drawing from my experience, there are many ways in which we could tackle it. One would be to introduce a modified form of this proposal, even though it would involve mixing civil and criminal law. Some provision will have to be written in to the effect that it can be applied only in very exceptional cases. Maybe we would have to specify the circumstances. It would impose a sanction at some time in the future. We will have to lay out the parameters within which that sanction can be applied if we are to follow this route.
An alternative would be to extend the barring order legislation of 1981, to allow a victim or a potential victim to apply for a barring order just before the person is released from prison. The decision would be based on his likely conduct at the time the barring order is applied for. If we take that approach, we have a number of logistical problems. What should the procedure be in telling the victim when the person is coming out of prison? What kind of notice should be given to the court?
Another possible approach I suggested in the Dáil debate is to create a separate offence of molestation or annoying of the victim. Senator McGennis asked if a person who is molested in a public place can have immediate recourse to the law. The answer is no. As the law stands, it will have to be reported to the gardaí, who will decide whether an assault has taken place. This difficulty should be overcome if we had a separate offence of molesting the victim.
One can support the spirit of reforming legislation but we have to find the most logical and practical way of framing it. We also have to overcome the many difficulties I can foresee. I hope Senators will accept my word that I am committed to doing something in this area. I am not convinced from what I have heard so far that this amendment as drafted, is necessarily the best way of dealing with this difficult and delicate problem.