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

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

I am pleased to present to the House today the Criminal Justice (Temporary Release of Prisoners) Bill 2001. The purpose of the Bill is to provide a clearer legislative basis for the power of the Minister for Justice, Equality and Law Reform to grant temporary release to a prisoner by amending the Criminal Justice Act 1960 and setting out the purposes for which temporary release may be granted, the circumstances in which it is to occur and the criteria which are to apply to the process.

Section 2 of the Criminal Justice Act 1960 is the current legal basis for the power to grant temporary release and provides that the Minister may make rules for the temporary release of prisoners, subject to conditions which may be imposed in each particular case. Rules made under this section include provisions for the imposition of conditions applicable to temporary release and for procedural matters.

Section 2 is a general provision and does not contain any guidance for the exercise of this power. The findings of the High Court in the Corish case, delivered early in 2000, pointed to the desirability to set out more clearly in legislation the criteria that should apply to the operation of the system of temporary release. The net point of the judgment in the Corish case was that there was no power to refuse to consider temporary release for categories of offenders because the 1960 Act did not specify that such a power existed. This arose from a position in which successive Ministers for Justice had specified certain categories of prisoners who are not considered for temporary release, save in exceptional circumstances. These categories included sex offenders, drug offenders and others where a risk to the community was significant or where public revulsion at the nature of such offences was particularly strong.

Following the judgment in the Corish case, the operation of these broad exclusions for categories was discontinued and each case is now considered and decided on its individual circumstances, having regard to the safety of the public which is of the utmost importance. This new practice will continue and, in the context of circumstances in which the provision of extra prison places in recent years has largely addressed the problem of overcrowding and allows for the operation of a controlled and structured temporary release regime, I emphasise emphatically that it is not the intention in this Bill to reinstate powers to exclude categories of offenders from temporary release. Notwithstanding this, following the Corish case, action must still be taken to ensure that the criteria governing the operation of the temporary release system be set out more clearly.

The Corish decision was a convincing argument that the 1960 provision was short on specifics and certainly not up to the standards of transparency that we now rightly expect to apply to the exercise of ministerial powers. It was for this reason that the previous Minister for Justice, Equality and Law Reform sought and obtained Government approval for this Bill. During the preparation of the Bill, the Supreme Court, in a non-binding comment in the case of the DPP v. Finn on 24 November 2000, suggested it was desirable that the system of temporary release be placed on a clearer and more transparent basis. We are acting in accordance with the judgment of the High Court and advice of the Supreme Court in introducing this legislation.

Before discussing the details of the Bill, it is important to consider what is the purpose of a system of temporary release and how it operates and to realise that temporary release is our system of parole, which is an essential feature of prison systems worldwide. Senators will be aware that the reason systems of parole or temporary release exist is that it is generally recognised that in a modern prison system, a more proactive role is required than that of just locking up an offender until the entire sentence is served and then releasing that person into society unchanged or possibly even changed for the worse. The prison system must, in so far as possible, seek to ensure, both for the longer-term safety of the community and in the interests of rehabilitating the individual prisoner, that prisoners, when released, will not re-offend.

The temporary release system can play an important role on a number of fronts. On the one hand, it can assist in the prevention of the commission of crime and safeguard the community while, on the other, seek, on a humanitarian basis, to help offenders to take the important step away from crime and into more positive and law abiding lives. Temporary release may be granted for various reasons to prisoners serving sentences of imprisonment. Short-term releases may be granted for different periods, ranging from a few hours to one or two days, and for a variety of reasons, including compassionate reasons such as the illness or death of a near relative. Efforts are also made, where possible, to plan structured temporary releases for re-socialisation purposes and to plan for the reintegration of offenders into the community.

Pre-release preparation could include the following: transfer to a less secure institution; a programme of short-term releases which might progress from supervised to unsupervised outings. The purpose of such programmes would be to reduce the effects of institutionalisation by aiding, for example, familiarisation with the outside world or maintaining relationships with family or relatives; temporary release to attend work experience or training. For example, prisoners in the training unit who are deemed suitable may attend the workshops run by Prisoners Aid through Community Effort, a voluntary organisation for the care and education of offenders founded in 1969, which runs a training workshop at Santry where various skills can be acquired that increase the possibility of finding work. The Santry workshop is attended both by serving prisoners on day release programmes and some who have recently finished their sentences. Prisoners may also be granted weekly renewable temporary release after careful screening to take up employment or to continue education or vocational training courses; and, pre-release preparation often includes temporary release to attend residential treatment for alcohol or drug addiction.

Decisions on pre-release programmes are made by the Minister or senior officials of the Irish Prison Service on his behalf. Review meetings are held regularly in each prison institution to facilitate the exchange of information and aid decision making in the management of offenders' sentences. Each meeting is chaired by the governor or deputy or assistant governor of the institution in question and is attended by senior prison management, probation and welfare service staff, chaplains, teachers, other prison staff and an official from the Irish Prison Service headquarters. Where an offender is engaging with other services in the prison, such as the psychology or psychiatry service or other medical services, the professional dealing with the specific offender will also be invited to attend when required.

Issues concerning risk to the community and preparation for re-integration are much more complex regarding offenders serving long sentences. For this reason, the interim parole board, which replaced the sentence review group, was established in April 2001 by the previous Minister for Justice, Equality and Law Reform. The principal function of the board is to advise the Minister on the administration of longer-term prison sentences, including the type of programmes which should be in place leading to release. The board reviews cases of prisoners sentenced to determinate sentences of eight years or more, but less than 14 years in circumstances where the prisoner has served half of the sentence. In the cases of prisoners sentenced to 14 years or more, including life sentences, the board will review after seven years of the sentence have been served. To be eligible for review a prisoner must have at least 12 months left to serve of his or her sentence at the time of the review.

The interim parole board formally began its work in December 2001, having first received guidance from the Irish Prison Service, probation and welfare service and psychiatric service sources. The board also received instruction from training personnel attached to the English parole board on its methods and sat in on hearings of that board.

It is important to be aware that in making its recommendations to the Minister, the board already has regard to the type of criteria provided for in this Bill. Enactment of the Bill will provide a statutory base for such criteria to which the Minister will have to have regard in dealing with recommendations from the board. The interim parole board has been set up on an administrative basis with a view to gaining experience of the issues of temporary release. The question of the establishment of the interim parole board on a statutory basis will be kept under review, taking into account the experience gained by the operation of the board.

I have already referred to the reasons for and importance of having a system of temporary release in operation. There are, however, conflicting issues which will always arise in such a situation. On the one hand, temporary release allows for processes of rehabilitation and reintegration of offenders into society while, on the other, and most importantly, concerns in relation to the safety of all citizens are addressed. It would be unrealistic to state there is never an element of risk involved in any system of parole or temporary release and, while the easy option might be to rule out any possibility of temporary release, such an approach would have serious consequences in establishing an inhumane penal regime. This would ultimately create greater risks for the public from prisoners whose only future prospects may be the continuation of a life of crime. None of us would favour such an approach and the Legislature, through the Criminal Justice Act 1960, has accepted that there is a need for a system of temporary release.

Any Minister for Justice, Equality and Law Reform must perform a difficult balancing act in operating a system of temporary release, weighing possible risks against possible benefits with the safety of the public always being of paramount concern. The prison modernisation programme in recent years is an important development in achieving this balance. The programme has largely resulted in the welcome closing of the "revolving door" system. With the pressure to relieve overcrowding in the prison system now gone, this allows for the operation of a controlled and structured system of temporary release. This Bill makes more transparent the criteria which should apply to the exercise of the power to grant temporary release and the considerations which must be taken into account in deciding on individual applications for temporary release.

I now turn to the main provisions of the Bill for the information of the House. The Bill is a short one which comprises only two sections, the second of which is a standard provision which contains the Short Title and commencement provision.

The main provisions of the Bill are contained in section 1 which amends the Criminal Justice Act 1960 by inserting a new section 2 into that Act. The new section 2(1) provides that the Minister for Justice, Equality and Law Reform can direct the temporary release of a person serving a sentence of imprisonment. Subsection (11) makes it clear that imprisonment includes detention in St. Patrick's Institution and in detention centres provided for in the Prisons Act 1970.

Subsection (1)(a) sets out the purposes for which temporary release may be granted by the Minister. These are to assess the person's ability to re-integrate into society upon such release; to prepare a person for release upon expiration of his or her sentence or upon his or her being discharged from prison; and, to enable a person to assist the Garda Síochána in the prevention, detection or investigation of offences or the apprehension of a person guilty of, or suspected of having committed, an offence. Paragraph (b) further provides that a person may be temporarily released where circumstances exist to justify the person's release on health grounds or on other humanitarian grounds. Paragraph (c) 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 prison concerned. Finally, paragraph (d) provides that a person may be temporarily released if the Minister is of the opinion that the person has been rehabilitated and would be capable of reintegrating into society.

Subsection (2) sets out the considerations which the Minister must take into account in deciding whether to grant temporary release. This subsection is intended to give a statutory basis to the considerations that have hitherto been taken into account in practice in reaching decisions on whether to grant temporary release and reflect internationally accepted practice. The considerations are: the nature and gravity of the offence to which the sentence being served by the person relates; the sentence concerned and any recommendations made by the court in relation to the sentence imposed; the period of the sentence served by the person; and the potential threat to the safety and security of the public should the person be released.

This provision now also provides, following an amendment to the Bill in Dáil Éireann, that regard will be taken of the views of the victim of the offence to which the sentence of imprisonment being served by the person relates; the person's previous criminal record; the risk of the person failing to return to prison at the expiration of the period of temporary release; the conduct of the person while in custody or while previously on temporary release; any report or recommendation made by the governor, the Garda Síochána, a probation and welfare officer or any other person whom the Minister considers may be of assistance in coming to a decision as to whether to grant temporary release; the risk that the person might commit an offence during any period of temporary release; the risk of the person failing to comply with any of the conditions of temporary release and the likelihood that a period of temporary release might accelerate the person's re-integration into society or improve his or her prospects of obtaining employment.

Subsection (3) sets out the circumstances in which the Minister shall not give a direction for the temporary release of a person. These circumstances are where it would not be appropriate to give such a direction for persons connected with any one or more of the considerations listed in subsection (2). This simply means that the Minister must not grant temporary release where he or she is of the opinion that he or she should not do so on the basis of any or all of the criteria in subsection (2). If, when considering any of the criteria, the Minister is of the view that the person should not be granted temporary release, he or she cannot grant such release even if another of the criteria might suggest that temporary release would be beneficial. If, for example, the potential threat to the safety or security of the public is so great that he or she feels the prisoner should not be released, the fact that the release might improve the person's prospects of employment need not be considered.

Paragraph (b) provides that temporary release may not be granted if it is prohibited by existing or future statutory prohibitions on temporary release. Such statutory prohibitions exist, with a saver for grave reasons of a humanitarian nature, in section 5 of the Criminal Justice Act 1990 regarding persons convicted of treason or of certain murders and attempted murders, for example, the murder of a garda. Similarly, section 27 of the Misuse of Drugs Act 1977, as amended by section 5 of the Criminal Justice Act 1999, provides that temporary release cannot be granted to a person where the mandatory minimum penalty of ten years imprisonment for drug trafficking has been imposed under that section, except for grave reasons of a humanitarian nature. Paragraph (c) provides that temporary release may not be granted to prisoners serving sentence for one or more offences who are on remand for another offence or offences.

Subsections (4) and (5) provide for the governor to be informed and to give effect to the Minister's decision. Subsection (5) now also provides, following an amendment to the Bill in the Dáil, that the governor shall make and keep a record in writing of that direction. Subsection (6) provides clarification that the granting of a period of temporary release does not create an entitlement to further periods of temporary release. Each and every release is a separate matter, having regard on each occasion to the criteria set down in this Bill. Subsection (7) provides that the Minister may make rules for the purpose of enabling this section to have full effect and that such rules may contain such incidental, supplementary and consequential provisions as the Minister considers necessary or expedient.

Subsection (7) now also provides, following an amendment to the Bill in the Dáil, that such rules may specify conditions to which all persons released shall be subject or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject. Clearly, conditions can be attached to temporary release. Subsection (8) provides that any rules made must be laid before both Houses of the Oireachtas. Subsection (9) provides that nothing in the Bill shall affect the operation of the Criminal Justice (Release of Prisoners) Act 1998. This subsection is precautionary to ensure that the arrangements applying to temporary release of qualifying prisoners under the terms of the Criminal Justice (Release of Prisoners) Act 1998 cannot be adversely affected by anything in this Bill.

The Bill is in keeping with a view expressed by the Supreme Court in the case of the Director of Public Prosecutions v. Finn that a clearer and more transparent basis for the system of temporary release is desirable. In the course of its judgment, the Supreme Court said it is extremely desirable that remission and sentence review should be placed on a clear and transparent basis but that it is ultimately a matter for the Oireachtas to decide whether to retain the present system, put it on a clearer and more transparent basis, devolve it to a parole board or confer it on the courts. This Bill, together with the interim parole board which advises the Minister on the sentence management of long-term prisoners, will provide the clear and transparent basis, which the Supreme Court has said is desirable, as well as the necessary safeguards required for the operation of the system of temporary release.

I commend the Bill to the House.

Ms Terry

I welcome this Bill. It is clear and concise legislation which puts on a statutory footing the powers the Minister formerly exercised under statutory instrument. If this legislation is implemented wisely, with a couple of changes I intend to propose, it could have a good effect. Giving temporary release to prisoners should help their rehabilitation, something we all aim to achieve.

It is important when dealing with criminal justice legislation to strike a balance between the rights of the victim and the rights of the criminal. However, the balance is often tilted more towards the rights of the criminal than the rights of the victim. We have a responsibility to ensure that the rights of the victim are provided for and upheld in legislation. I am anxious to include a provision in this Bill which will allow the victim to be told when the criminal who perpetrated the crime against them is being temporarily released. There have been many instances where the victim of a crime bumps into his or her attacker, who is on temporary release from prison, when walking down the street. This causes great shock and upset for the victim. We should provide that the victim will be informed if his or her attacker is given temporary release. I will table an amendment to that effect on Committee Stage.

Until recently, the powers of temporary release were exercised by the Minister under a statutory instrument. In the High Court decision in the Corish case, Mr. Justice O'Neill found that the power being exercised by the Minister, on foot of article 4 of Statutory Instrument 157 of 1998, to be ultra vires. Is this Bill being introduced to remedy the illegality of what was carried out heretofore? That could be described as the Minister breaking the law.

It would not be the first time that the courts have found the Government to be on the wrong side of the law and I remind the Minister of the five-nil decision of the Supreme Court in the case of Vincent v. the Attorney General, which emphatically stated that the Government had been making regulation after regulation on fisheries without any legal basis. If nothing else, that highlights the fact that the Government is prepared to stretch its own laws to the limit until it is brought to book by the courts. The Progressive Democrats were very fast in coming forward to tell us that they would be the Government watchdog. It is not they but the courts who are the Government watchdog and we must thank them for it.

I put it to the Minister that the motivation behind the Bill is that, until now, by giving temporary release to prisoners, the State was exposing itself to potential liability where the criminal reoffended. The Bill aims to close off that possibility. The Minister for Justice, Equality and Law Reform, whom the Minister of State is representing today, has not been very candid in telling us that the Bill will help exonerate the State from any liability in that regard. I ask the Minister to address that point. Does the Bill seek to confer immunity on him? I would like the Minister, Deputy McDowell, to be present because in a 1994Irish Times article, he expressed the view that, in the absence of legislation, there were strong grounds for victims of early release reoffenders holding the State liable. I would like the Minister to clarify whether those are the reasons behind the Bill. Will the Bill exonerate the State from liability where an offender on temporary release reoffends? The explanatory memorandum should reflect that and the Minister should be more open in telling us the real reasons for introducing the Bill.

Mr. J. Walsh

I dtosach báire, ba mhaith liom fáilte a chur roimh an Aire Stáit go dtí an Seanad inniu chun an Bille um Cheartas Coiriúil (Scaoileadh Sealadach Príosúnach) 2001 a phlé. It is an interesting Bill, which goes to the core of how society regulates itself. A maxim has been enunciated in the House on similar subjects of debate, namely, that crime does not pay. We should judge any legislation that comes before us by that maxim. It is important that people who commit crimes make restitution for their offences. There is a perception – Senator Terry may have touched on it – that we tend, through various civil liberty and other groups, to take account of prisoners' conditions and so on. That is fundamental, but as Senator Terry rightly says, it is important to remember the victims of those offences too.

That must all be judged against the background of how we deal with offenders. It would be fair to say that there has not always been consistency in sentencing by courts. It has always struck me as somewhat peculiar. While I fully subscribe to the principle that the courts must be absolutely independent of the Executive, it does not mean that they should be totally independent of any sort of assessment of their decisions. Ultimately, their actions and decisions reflect on society, how we abide by our laws and particularly how we perceive the actions of the State in administering them.

We have debated the system of restorative justice, which has been tried in one or two areas, in the Joint Committee on Justice, Equality, Defence and Women's Rights. It would be nice to think that the Department would be at the forefront and perhaps much more prominent in pursuing that type of approach. Community service could be much more widely deployed as a means of dealing with offenders, very constructively enabling them to make restitution to society for their offences without putting them in prison. Custodial sentences should be the last resort, particularly if we are talking about crimes that we might not regard as very serious. It would be fair to say – I have seen examples – that people go to prisons which are higher institutions of crime. They come out much more proficient, becoming involved in the drug trade and various other things in which they were never involved before they were put in prison.

There is a real onus on us to regulate this area sensibly to avoid the recurrence of crime committed by such individuals. There is a clear onus on the State, as far as practicable, to ensure that people do not graduate to more serious crime simply because they are serving a custodial sentence. A balance is needed. The rights of prisoners are often talked about and I have no difficulty in subscribing to part of that, but I hold the view that prisoners should be obliged to work to compensate the cost of their custody, at least in part. In its own way, that can be of value in getting them into meaningful employment when they emerge from prison. We should take any rehabilitative steps that we can in that regard.

The question of granting temporary release is clearly set out. The Minister has rightly said that it emanated from the Corish case. It seems very sensible, as he rightly said, in an era of absolute transparency on such issues that the criteria be set down clearly. I have gone through the criteria and obviously will support much of it. However, I have some reservations about some of it. The Minister may direct the temporary release of a person serving a sentence of imprisonment. It sets out the purposes, stressing the person's ability to reintegrate into society upon such release. That begs the question to what end. I have seen examples in some prisons, Castlerea among them, where there is accommodation of the sheltered kind within the prison precincts to enable people who may have become institutionalised while in prison to graduate to a more settled exterior existence. People often encounter difficulty, particularly if they have been incarcerated for a long time, reintegrating into society and I know that temporary release is in part designed to help them do that.

It also prepares a person for release and enables a person to assist gardaí in the prevention, detection or investigation of offences. It is obviously and eminently sensible to allow releases in those circumstances. The Bill goes on to state that a person may be temporarily released when, in the opinion of the Minister, circumstances exist to justify release on health or humanitarian grounds and again it is appropriate to have such provisions. Any civilised society would do that.

I have some reservations regarding paragraph (c), which states that the Minister may grant temporary release where he considers it necessary or expedient to ensure good government of the prison concerned or to maintain good order in and humane and just management of the prison concerned. A system should be in place to detain people to serve their sentences. I have some difficulty with a principle under which people could be granted temporary release simply because we do not have the necessary facilities. The Minister referred in his speech to the closure of what was euphemistically referred to as the “revolving door”, but I have come across cases in which it was not easy to accumulate evidence, despite gardaí being convinced that a suspect was responsible for a certain crime and therefore deserving his just desserts. It is not always easy to accumulate the evidence necessary to achieve a conviction but I have come across cases in which offenders are back walking around their towns less than a week afterwards and more or less jeering the gardaí who went to the trouble of putting them away in the first place. That is unacceptable and unfair to society and I have reservations about this provision. While I hope there are no such releases, if there are their number should be negligible.

The criteria the Minister must consider before granting temporary release are clearly set out. The nature and gravity of the offence is obviously an essential criterion and so are any recommendations by the court in relation to the sentence which would obviously reflect on the crimes heard in the court and are very appropriate. The length of the sentence served by the person is another criterion and I understand from what the Minister said that a minimum period would have to be served before people would be considered for temporary release. Regarding the potential threat to the safety and security of the public should the person be released, we have seen high profile instances in the recent past of people re-offending. In this context there is an onus not just on the Minister, but on prison authorities and others who are part of the assessment process to be 100% sure that people will not re-offend. It would be unacceptable for innocent civilians to be subjected to crimes at the hands of people on temporary release. Some mechanism should be put in place to extend sentences if the terms of a temporary release are breached, particularly if the breach is serious.

The person's previous criminal record is also a serious consideration. If a person has been in jail for minor offences, it begs the question why a sentence other than a custodial sentence was not applied. However, if a person re-offends he or she should only be released in exceptional circumstances. Other considerations include the risk of a person failing to return to prison and the conduct of a person while in custody, which are obviously worthwhile also.

I have some sympathy with the comments of Senator Terry under paragraph (h). There has been some interesting and constructive media coverage regarding the possibility of the legislative process and the Department of Justice, Equality and Law Reform being too concerned with the offences and the offender and not being concerned enough with the victim. It strikes me that regarding certain crimes, though not all crimes, where serious physical injury is inflicted, for example, there should be a place in the consultation process for the victims involved. It is fine to get the recommendations of the prison governor, the gardaí and the probation and welfare officer, as they will all have considered views which will be helpful to the Minister. However, there is an ideal opportunity here for the Minister to stitch in a provision for consultation with victims in certain circumstances.

Sometimes victims can become embittered, which is only human, and that consultation process does not have to be fully accepted by them, but the mere fact of consultation is recognition for the victims. In the past we have not done that and we should do more to put the victim centre stage. When we had discussions at the Joint Committee on Justice, Equality, Defence and Women's Rights on the Nenagh project on restorative justice, it was interesting that the victim was a very important component of the process. It is good for the healing of the victim but it also helps to challenge the offender to come to terms with the nature and consequences of the offence. Often that is better than anything else done to rehabilitate a prisoner.

This could be examined further but the other criteria are common sense. Obviously one has to consider whether a person will commit another offence, whether he or she will fail to comply with any of the conditions and whether temporary release will accelerate the person's reintegration into society. In general the principle behind the Bill is good and this is a welcome step forward. However, while no specific crimes are excluded other than those covered by the 1990 Act, those committing crimes such as serious drug offences, serious assault resulting in bodily injury, robbery with firearms and terrorist offences should serve their sentences full stop and should not be considered for temporary release. That is not to say that other mechanisms could not used to try to rehabilitate those offenders, but the message should be given that prison is not a place one will get out of quickly if one behaves oneself, regardless of the offence committed. Those who commit particularly serious crimes should serve serious sentences which will not be reduced for any reason. There may be temporary releases on humanitarian grounds – I would not exclude that – but those are the only grounds on which I would consider releases in that context.

We must consider how to achieve a proper balance in this area, which is not always easy. There is a subjective element in that people, depending on where they stand, will take different views of rehabilitation and encouraging offenders to become good, constructive members of society as opposed to what those offenders may have done previously. Everyone deserves a second chance and that should be a hallmark of our society. However, on the other hand, people must pay the penalty for their crimes and make restitution to society in general and to their victims in particular. That might create more order in our society.

Dr. Henry

I welcome the Minister of State and the Bill, which is a good step forward. Senator Terry and Senator Walsh are right that we have to express our concerns for the victims of crime as they may have suffered grievously at the hands of the imprisoned person.

I was cheered by a point made by the Minister of State that when taking into consideration matters regarding temporary release, the Minister would examine the potential threat to the safety and security of the public should the person be released. This provision also ensures, following an amendment to the Bill in Dáil Éireann, that regard be taken of the views of the victim of the offence to which the sentence of imprisonment being served by the person relates. The only section of the Bill where the victim is mentioned is section 1(2)(d) where it states:

the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison.

That is not the same as what the Minister of State said. He said that the views of the victim of the offence, to which the sentence of imprisonment being served relates, are to be taken into account. This does not tie in with what is in the Bill, which takes into account only the safety and security of a victim – if he or she is likely to be attacked. There is no provision in that section to the effect that the views of the victim are to be taken into account, unless that is provided in another section of the Bill which I have missed.

Senator Terry's proposal that at least the victim should be given notice that the person concerned will be let out on temporary release is a good one which the Minister of State should consider, particularly, as Senator Walsh said, if the crime committed was serious. We hear sometimes of offenders being released on bail and the horror of a victim who was raped by an offender, or the horror a family member where another family member was murdered when that person saw the offender concerned walking down the road. We are aware that crimes are often committed by people who live adjacent to their victims.

Senator Walsh made an important point that we must try to ascertain if prisoners will address what they have done to their victims. This is the basis of restorative justice, which, as the Senator will be aware, has been extremely successful in the United States in particular where it was first introduced. It has been very useful in those cases here where prisoners have been made address exactly what they did and what it did to their victims. The victim must also agree to co-operate with this process. It is an area we should try to expand within the prisons because it is important for offenders to face up to what they did and, if possible, to try to show some recompense, but they at least should realise they did some wrong and caused great harm. I support Senator Terry and Senator Walsh on this point.

The Minister of State made another extraordinarily important point. We do not want an offender to be released from prison unchanged or, worse still, changed for the worst and to return to society even more bitter and difficult to deal with than he or she was in the first instance. This is an area we need to address within the prisons.

I am sure the Minister of State is well aware of the voluntary commitment to programmes called Alternatives to Violence which are run in several prisons. They are available in both parts of Wheatfield, the midlands and in Mountjoy and they have been provided on a once off basis in Limerick and Castlerea. These programmes are extremely important also because offenders must be involved in taking responsibility for the crimes they committed, realise that they were seriously wrong and that they harmed people. They need to understand there are other ways of settling one's disputes rather than, as one woman was accused of, committing grievous bodily harm. She said to me at the time, "I just gave her a bit of biff". I was present to plead for her because she was needed to mind various children. There is a method of trying to get across to offenders that we take seriously what they did to their victims and that as well as incarceration we require them to become involved in a programme to be set up, which we hope will make their lives better once they are released.

The educational facilities within our prisons are excellent. When an amnesty was granted to a number of prisoners in Portlaoise to leave that prison following the signing of the Good Friday Agreement, I recall that a colleague who is involved in the education of prisoners regretted very much that the agreement was signed in April. He said if only the negotiations could have continued until June many more of them would have completed their degrees or other courses.

Some people find benefits in prison that they have not found elsewhere. Another friend, whose son dropped out of college and ended up in prison where he completed a degree, said to me that it was a great pity her son had to go to such lengths to finish his education. We make a great effort to involve prisoners in education within the Prison Service. I have the greatest respect for all those involved in education in the Prison Service because they try to do the best job they can. The more encouragement we can give prisoners within the Prison Service – perhaps initially only to become involved in learning to read and write, with which I have discovered a considerable number of them have a problem – the better. I have visited many prisons here, but I have not been an inmate. Sometimes when I say "the last time I was in Mountjoy" people ask me if I was in for shoplifting or for being around Burlington Road again.

The efforts made by prison staff to try to rehabilitate prisoners is astonishing. One concrete effort to which I point is the play that takes place every year in Mountjoy. When that play started many years ago the authorities could not get prisoners to audition. They had to bring in actors from outside the prison, but now the prisoners nearly fight mano a mano to get a part. Last year was the first time that I ever saw the first names and surnames of all the characters and of all those who made the sets recorded in the programme. That was because they were all very proud of what they had managed to achieve. For some of them, it was the first concrete achievement for which they got great applause in their lives. One of the most moving sights I saw there was on the night of the main show when the prisoners' families came to see the play and following it I saw children rushing up to their fathers. Last year I saw two children, who had come over from England with their mothers especially for the play, rush up to their fathers and look at them with admiration in a way they probably had never looked at them previously.

These sorts of events are extraordinary important within the Prison Service because, as the Minister of State said, we want offenders to come out of them changed for the better. This is why temporary release is very important because offenders become institutionalised very easily and they lose contact with their families, which is another disaster. If they lose contact with their families, it is difficult for them when they are released because they can be ostracised and not allowed to live with their families any more. These efforts are important.

I would go even further in regard to some of these conditions and propose that not only humanitarian efforts should be taken into account, but some important days such as first holy communions, confirmations and other such occasions. They do not come under the heading of humanitarian – they are social occasions – but they are very important for a child who may not have said to schoolmates why his or her father or mother is not around. Such children will be asked why did their fathers or mothers not turn up for that special day. Therefore, temporary release for such occasions is extremely important.

One element that is lacking within the Prison Service – although chaplains, psychologists and many prison officers, particularly the older ones, make a huge effort to fill this role – is the giving of more emotional support to prisoners. Many of them feel they have been badly done down by society. There is not much point in them coming out of prison even more bitter than they were before they went in. It would be helpful to reflect on how we could put a little more effort into that aspect, perhaps by way of more discussion with the chaplains in prisons, the parole workers and social workers to see what could be achieved. The objective is to try to get offenders to reintegrate into society in a better way.

The Minister of State pointed out, and it is also made plain in the Bill, how extremely important it is for – I sometimes say patients at this point – prisoners to become involved in training outside prison. Some courses are only available outside prison. I praise FÁS for the incredible work it does in this area. Prisoners have to be released to take up these courses.

I have met women prisoners who have gone out to learn to be beauticians or to be involved in fitness training centres and who have got jobs when they got out of prison. We must remember that it is extremely difficult for ex-prisoners to get jobs. They sometimes have to get training in such areas. It is hard to get back into a bank, for example, but an ex-prisoner could perhaps get a job in a fitness centre or as a beautician. All these things should be helped by this sort of legislation and I am delighted it is before the House.

One issue is not mentioned in the Bill, although it is not excluded. That is the situation regarding "lifers", those on life sentences, which, as the Minister of State is well aware, run to about 12 to 14 years, a very long time in prison. I sometimes wonder how many of the Judiciary have visited prisons; many more have done so now than would have done years ago. The Minister of State is well aware that law students are now brought on visits to prisons. That is an innovation which perhaps was not there when the Minister of State was in college. It is a very worthwhile innovation in that law students will now know exactly where prisoners are going. I would not like to spend even one night in prison. It would be far too long for me. It is not nearly as soft a treatment as it looks.

The conditions in prisons have changed dramatically in recent years and this has been a major advantage for many of the people sent there. I remember when I first visited the former women's prison years ago. The thing that struck me was the appalling level of noise. There was clanging of gates all the time and people shrieking not because they were in pain or being tortured, but because they got involved in self harm because things were so bad. If one visits the women's prison now things are so much more constructive. Some of the best cooks in Ireland will probably come from that prison. They get cookery classes almost on a one to one basis. As the Minister of State noted, anything that would have people coming out changed for the better is worthwhile.

Those serving life sentences should be judged on a one by one basis because it might be very important to allow some of them temporary or early release. After all, they are never free. Someone given a life sentence can always be called back to prison. I recognise that there have been occasions where people were released who had committed murder and then murdered again. Nothing is without risk in this life and I take that into consideration, but to give people a date to work towards is very important. Prisoners serving life sentences are not excluded in the Bill, so I do not know what exactly the thoughts of the Minister for Justice, Equality and Law Reform are in this area.

The Minister of State mentioned the interim parole board and the possibility of putting it on a statutory basis. I would be glad to see that happen. I would have thought it possible that a board, rather than the Minister alone – being the one making the final decisions – might be in a position to make recommendations not because the Minister could do so in any worse or better way than the board, but because it will remove from that decision-making any notion of political influence. I wonder if it would be possible for the interim parole board to be made statutory and for it to undertake the function given under this Bill to the Minister.

Along with Senator Walsh I am a little alarmed by section 1(2)(c)(i) and (ii) which allow for the possibility of prisoner release to “ensure the good government of the prison concerned, or (ii) maintain good order in, and humane and just management of, the prison concerned”. I would like some more explanation of that issue.

Section 2(2)(i) states that the Minister can take into consideration "the risk of the person committing an offence during any period of temporary release". That could be unconstitutional. It was a problem we encountered regarding bail. One could not take into account the fact that a person might have committed a crime while out on bail. The Minister of State would know more about this than I would – he is already shaking his head. He obviously has an answer to this, but this matter might have been looked at more carefully. I am not setting myself up as a constitutional lawyer. I always say to doctors that I am fed up getting medical advice from the legal profession, so I will try to refrain from giving legal advice to the legal profession.

I wonder if applications for the release of prisoners could be made by a broader group of people. Section 2(2)(h)(iv) of the Bill refers to “any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned.” It strikes me that under the terms of the Bill, unless a prisoner has an advocate in court or in prison it may become difficult for him or her to be considered for release. I wonder if there is any way in which applications could be invited, perhaps even from members of the public who know the person and who might write to say that the person was not so bad, or looked after the children and so on. In that way the people with the best advocates might not necessarily get the most preferential treatment, a state of affairs which occurs so often in this life, as Members are aware. Those who can pay for the best advice are the most likely to do best in the long run.

The Bill is a big step forward and I am delighted it is before the House. Senator Terry's proposed amendment should be taken into account. It is a very serious matter if a victim encounters the perpetrator of a serious crime against that person coming down the road. Notification of the release would be a big help to the victim.

Ms Tuffy

I broadly welcome the Bill but would also like to raise some concerns with it. I know that the Labour Party tabled a number of amendments on foot of which the Minister made amendments. I welcome the fact that the Government took on board some of the points that the Labour Party and my colleague, Deputy Costello, made when the Bill was going through the various Stages in the Dáil.

I welcome the fact that the Bill deals with just one issue. Much legislation currently being introduced by the Government involves almost entire Bills being introduced by way of amendments. That is the wrong approach. Different issues should be dealt with appropriately in separate Bills.

The background to this Bill is the case mentioned by the Minister of State. I do not entirely agree with Senator Henry's statement that it introduces all the elements she would like to see, because it does not. It deals with the status quo, the position as it is without the legislation, and it is establishing a statutory basis for it. In part it is designed to bring back the element of discretion for the Minister to refuse release to certain prisoners for various reasons. I urge the Minister to be cautious in this regard and not to discriminate against prisoners on the basis of the crime. I know that the Minister for Justice, Equality and Law Reform has been very critical of the media, its role in society and the way in which it can single out people. Very often the media can make pariahs of prisoners because of their crimes. Political pressure can then be applied, which is not necessarily based on the sound reasoning, that the prisoner should not be released. It is very important that there are general principles that are generally applied in terms of temporary release. As the Minister of State noted, these should be open and transparent.

I wanted to raise an issue with reference to the caution I expressed in relation to what Senator Henry said. There is a need for a Bill to deal with the whole sentencing area. Senator Henry mentioned that, for example, a broader group of people should be able to make a case for the release of a prisoner. A more holistic approach to the sentencing of prisoners is needed. The ultimate goal should be that the prisoner will not re-offend.

The National Economic and Social Forum recommended, in its report, a legislative basis for a more holistic approach to include such things as a sentence management plan, etc. We must have a more multifaceted approach to dealing with prisoners than currently exists. Sentencing should involve all stakeholders to ensure that when a prisoner is released, the local authorities become involved to deal with such issues as social welfare and housing. That is merely a summary of what was recommended by the National Economic and Social Forum. It is the type of legislation needed to bring about the kind of approach mentioned by Senator Henry.

Mention was also made of putting parole boards on a statutory basis. I note that the Minister mentioned the issue was under review and that the Minister of State, Deputy Brian Lenihan, during the Report Stage debate in the Dáil was much more specific in saying that legislation in that regard would come before us within 12 to 16 months.

I agree with the points made regarding the importance of victims. I understand the Labour Party tabled an amendment to this legislation in that regard during its passage through the Dáil.

We need to examine the reason we rely so much on imprisonment in regard to small matters. Temporary release of prisoners leads to issues of more resources for the Garda, community policing and investment in communities. We must look at ways of preventing prisoners from re-offending, or from offending in the first instance. I welcome the Bill.

Mr. Kett

I welcome the Minister of State and this amending legislation, the purpose of which is to amend the Criminal Justice Act 1960 to enable the Minister of the day to be more transparent in his judgments when granting temporary releases. We now know this came about following the Corish judgment in 2000 when it was deemed the Minister did not have the power to refuse to consider to grant temporary releases in certain situations. That obviously highlighted the shortcomings of the law as it existed. It is important – this point has been made by a number of speakers – when considering this legislation that we try to achieve a decent balance. Senator Terry made reference to the victims involved. We must also consider the person who has been incarcerated. We have an overriding obligation to the public at large to ensure that when making decisions about temporary releases we are mindful of the person's readiness to rejoin society.

Apart from looking forward to having visitors, the next best thing a prisoner has to look forward to is the time when he or she will be considered for parole or temporary release. I am sure governors and prison officers are very conscious of that. I am certain they use the carrot of temporary release as a means of keeping order within the prisons. I assume that a person causing trouble within a prison would be disqualified from consideration for temporary release. We have to assume in that context that if the person causes trouble in prison, he or she will do the same upon release.

There are two forms of release. The first relates to temporary release to attend a funeral, a christening or birth and so on and the second relates to an individual who has been incarcerated for up to ten or 20 years. There are much more serious consequences to be taken into account in the case of the latter. Will the Minister of State say if there is a type of education system in place to assist those released from prison to cope with the outside world? For example, a person currently serving a sentence of ten or 14 years will be faced with a currency change upon release. Are prisoners sent to places such as PACE in Santry for upskilling and re-integration into society? Do we resource such places sufficiently and should we look at providing them with greater access to resources to assist them in this regard?

A great deal of money is spent on the running of prisons. Our system is, by and large, a decent one. We have all seen on our televisions how people incarcerated in South America or Iraq are treated. That was something to behold. While there will always be shortcomings in our system, it is good. We need to examine our therapeutic, psychological and psychiatric services. More important is the treatment we provide for recurring drug offenders. I recently read an article relating to a situation in Portlaoise which, if true, is an indictment of us. The article stated there were two prisons and a psychiatric hospital in Portlaoise. A prisoner in Portlaoise has to travel with three prison officers to the mental institution in Dundrum to undergo psychiatric assessment. The reason given is that he or she does not come under the Midland Health Board area because they are not resident in Portlaoise. That is duplication at its worst and we must examine it.

Will the Minister of State say if statistics relating to re-offending have improved? We have had different levels of discussion in the past on how often prisoners re-offend. Has the situation improved? The type of crime being committed nowadays is more callous and vicious than ever before. This is blamed on the availability of drugs and the amounts of alcohol being consumed. If we in this House, as a result of legislation introduced, do nothing else in terms of justice, equality and law reform than to allow people to sleep easier in their beds or go out at night without fear of being mugged, then we will have done a good job. We have, during the last year, dealt with legislation on public order, illicit trafficking at sea and drug barons on land. All those issues are related and I am hopeful that during the next couple of years we will see a considerable improvement in our quality of life. I will be disappointed if that does not happen as a result of the various legislation we have introduced.

Decisions taken by Government in recent times in terms of its commitment to the building of more prison places and the modernisation of current prisons has made things easier for the Minister for Justice, Equality and Law Reform when dealing with temporary release matters. He no longer has to consider the revolving door issue. He can make a more balanced judgment on who should be temporarily released. The easy thing to do would be, as the Minister of State said, to make no judgment at all. One could take the easy way out and grant pre-release to those who present no risk to society. However, to coin the Minister of State's words, we would be talking about an inhumane prison regime and that is not the answer.

I commend the great work done in prisons by governors, prison officers and probation and welfare officers. I hope they are provided with sufficient resources to carry out their work efficiently and effectively. I welcome the Bill and look forward to its enactment.

Dr. M. Hayes

I also welcome the legislation and I congratulate the Minister of State on the way in which he has brought the legislation forward. While we are not engaged in a wide-reaching review of the Prison Service, I would like the benchmark to be set a little higher than in Colombia or Iraq. Aspects of the Prison Service, which are not a reflection on the people working in it, need to be examined, including resourcing and the suitability of buildings and surroundings and so on. However, it is important to recognise the rehabilitative nature of imprisonment. Prisons are not simply places in which to lock people up. All of us live in the hope of amendment and restoration at the end of the day. It is important, in the circumstances, that prisoners have hope. The worse thing that could be done in terms of running prisons is to leave people without hope of amelioration. That is an important part of the discipline of the system.

Implementing temporary release under a set of criteria on a statutory basis is welcome. The Minister of State or his successor could face a judicial review but that will help to develop a set of criteria for dealing with these issues. There is a strong argument for ensuring that prisoners in the second half of a long sentence, in particular, are helped in preparation for release. However, even for people in the early part of a sentence, "hope deferred maketh the heart sick." Liberty is taken from prisoners under the law and nothing else. They are members of families, which suffer as a consequence, and children who have lost a parent through imprisonment should be helped. That is an important humanitarian reason for the exercise of discretion in these matters.

Senator Tuffy referred to the classification of prisoners and this must be applied objectively, whether we like what people have done or whether they are fashionable or whether they engaged in white collar or other forms of crime. Reasonable judgments can be made on the criteria set out in the legislation such as being a danger to the community and the likelihood of re-offending. There should be no sense in which a prisoner should not be released if people dislike his or her politics. It is proper that when people are on temporary release, a condition should be built in that they do not engage in political activity.

Equally, if people are imprisoned for sexual offences, they should not be locked up forever but the terms of their release should make it clear where they can go in order that children are safeguarded. As the Minister of State said, no regime is without risk but it is important to minimise the risk. There is a great deal to be said for putting more resources into the preparation of prisoners for release, as Senator Kett stated, so that they see it as part of a process, particularly if it can be linked to restorative justice if the victims and others want it.

My reservations regarding the legislation centre on the victims. I had experience of a case in which a man was murdered and his murderer was quite properly released. However, his extended family was shocked at the release. Their rough and ready notion of justice was that the murderer should have remained in prison and that is particularly the case in small, closed communities in country areas where the victim and murderer often live cheek by jowl. Where possible, the victims should be informed about the release of the offender, particularly if they live in the same area and are likely to bump into each other. A veto on releasing an offender should not be provided but, nevertheless, victims should be informed and help should be provided to allow them to deal with the issues that arise.

This is a forward looking and humane provision and the Minister of State will bear in mind the contributions of Members when implementing it. I support the legislation and wish the Minister of State well.

Ms O'Rourke

I am glad to have an opportunity to contribute to the debate. This is interesting legislation as it strikes a chord with people in terms of how they feel about the justice system, offenders and the effort to ensure they do not enter prison to emerge as more committed criminals. The optimum benefit towards which one should work is that the person who is imprisoned should go through a restorative process so that when he or she emerges, he or she can make a meaningful contribution to society. That sounds lofty, particularly when one must consider how it can be ensured that a prisoner spends time in prison without hardening his or her criminal inclinations.

Senator Maurice Hayes referred to rough and ready justice. It is correct in many cases that an individual commits a crime and is sent to prison, getting what he or she deserves, particularly given the distress caused to victims. The notion that the person who commits a crime must serve his or her time is the yardstick for rough and ready justice. It is correct that he or she should get his or her due deserts in a non-beneficial way. However, at the same time, we are members of society and depend on one another in terms of displaying good conduct, developing good relationships and bettering the lives of others. It may sound like Mary Poppins stuff, but this Bill is concerned with temporary releases.

We need to assess why provision needs to be made for temporary releases. As the Minister of State said, we have moved on from the time when the revolving door syndrome was a common feature of the justice system. We have better prisons, thankfully, as well as more prison spaces. The revolving door syndrome has been eliminated. Why, therefore, should there be temporary releases? They are needed so that people can become acclimatised and accustomed to society once more. Prisoners might need to be released temporarily to undergo a training regime that is suited to their abilities and that may give them better employment opportunities when they are released.

We are all familiar with the notion of temporary release on humanitarian grounds. I have found all Ministers for Justice, Equality and Law Reform to be most approachable in that regard since I became involved in public life. All Ministers, of whatever political party, have been most ready to accede to requests put forward when there is a genuine humanitarian aspect to the case, such as a death, severe illness or severe trauma in the family of a prisoner. That has always been the system.

The wider picture in this regard needs to be considered. What is to become of a prisoner when he or she is released? There is a clear role for structured temporary releases with a particular purpose. Society will decide whether a prisoner should be moved to a more open type of prison where strictures and confinements are of a less excessive nature. The question of how well prisoners may accustom themselves in such an environment will be considered, bearing in mind how they are performing in terms of job opportunities or training.

One often hears of infamous prisoners who have been in training units for a year or two ahead of their planned release. We are familiar with the case of a particular prisoner who excited great interest in the media when he was released in recent years. Such cases tend to be seen in black and white. People ask why he or she – it is usually a "he", but it is a politically correct world so I will say "he or she"– should be released when he or she has committed such a heinous crime. The details of crimes are often retold in graphic language so that their horror is revealed to everybody once more. One may not have heard of the crime when it took place, or one's memory of it may have become dimmer as the years passed. The newspapers may remind the public of the details of the crime in graphic terms, with photographs, etc.

The rough and ready aspects of the matter are considered by people who ask why the perpetrator of a crime should be allowed to avail of a training unit, receive job opportunities or attend a more open prison. Such provisions are inherent in the Bill before the House – that is life. We have to equate the steps we take as a society with the purpose of releasing a prisoner so that he or she can avail of certain opportunities. The purpose of the provisions we are putting in place is to ensure that prisoners are better able to reclaim a place in society when they leave prison. The person being released should be helped to form new relationships, for example, or to restart old relationships if they existed. It is important that they are able to accustom themselves to life on the outside. The days of heavy gates being opened and a blinking prisoner saying "this is the first time I have been on the outside for 20 years" are gone. Such scenes are found only in films and are not in line with the way life works.

The belief that "the quality of mercy is not strain'd"– that it has to be for everybody – has been expressed by all Senators who have contributed to this debate. While the biblical tradition refers to "an eye for an eye and a tooth for a tooth", it is not a suitable model of justice for a modern society. Nobody believes that justice should be invoked for such a purpose. I strongly agree with this Bill, which places on a formal footing the existing views of the prisoner regime of the Department of Justice, Equality and Law Reform and its Ministers. We are part of the society that used to assess what went wrong in a person's life to cause him or her to commit a crime. It was often the case that such a person's upbringing or background did not give him or her a chance in life. As I said at the start of my contribution, I am glad to be able to speak about this interesting Bill.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

I thank the Senators who contributed to this informative and constructive debate. Before I deal with the specific points raised by speakers, I should reiterate that the main purpose of the Bill is to provide a clear legislative basis for the granting of temporary releases. The legislative device in question, therefore, is the amendment of section 2 of the Criminal Justice Act 1960. This Bill lays out in much greater detail the criteria which govern the exercise of ministerial powers in this area. It is important to commence by stating that temporary release is not a right, but a privilege. This is a fundamental point of departure when considering this issue.

I would like to respond to Senator Henry, who pointed out that this legislation expressly permits the Minister to take into account the risk of a person committing an offence during any period of temporary release. In the context of bail, however, one is dealing with a person who has not been convicted of an offence. A person who has been charged with an offence can seek bail. Before the amendment to the Constitution was approved by the people in 1996, courts were not permitted to take into account the risk of re-offending in the context of bail because the accused person had not been convicted at that stage. This Bill relates to a person who has been convicted and sentenced, however. The Minister is entitled under this Bill – the Oireachtas is entitled to legislate in this way – to take into account the risk of offending, which is a very material matter in the consideration of issues of this type.

The Senator's query is well made, however, as it illustrates the nature of temporary release. As I said, temporary release is a privilege that the Executive is permitted to grant to an individual who has been sentenced to a term of imprisonment, but it is not a right for the prisoner. It cannot be a right, as the courts have laid down a definitive sentence. Experience of the administration of the prison system teaches us that temporary release arrangements are necessary for the humane administration of a prison. The arrangements do not relate only to humanitarian matters, in respect of which they have always been available.

The Houses have legislated that temporary release is not available in certain circumstances. Senator Jim Walsh seems to have a misapprehension in that regard. Certain legislative provisions exclude the possibility of temporary release, for example, in the context of a life sentence, a person who has been convicted of a serious drug trafficking offence and who has been sentenced for a period in excess of ten years or a person who is facing parallel charges. The Oireachtas has provided that temporary release should not be available in such instances, but humanitarian release is permissible.

There are other reasons that temporary release may be necessary. I reassure Senator O'Rourke, who engaged in a general reflection on the penal system, that the concept of structured release is very much part of the Government's thinking in respect of temporary release. Most of those connected with the administration of prisons have advised us that temporary release is one of the key elements of rehabilitating the offender and preventing re-offence. Issues such as the structuring of the release stage, the discussions that take place and the placement of the prisoner after his or her release are absolutely crucial in the context of rehabilitation.

I welcome the focus the Seanad has given to rehabilitation today as it is one of the key areas we have to examine. It is often the case that a prisoner emerges from a prison in a state of total disorientation from the wider community. His or her accommodation and employment arrangements may be uncertain. The very trap that we want to avoid – the risk of re-offending and going back to one's old ways – can often be created.

Senator Terry raised a question that was central to the contributions of many speakers. She spoke of the need for victims to be protected in relation to this exercise of powers. An amendment was accepted by the Government on Committee Stage in the Dáil and I await with interest the proposal which I understand Senator Terry is formulating. I understand that she is proposing that a victim must be notified when an offender is out on temporary release. I assure Senators that the Minister is conscious of the plight of victims and of the devastating consequences of some offences.

The current practice is that the Prison Service does not automatically inform all victims of such temporary releases. There are many sound reasons for this. Experience has shown that many victims of crime do not want to receive such information as it only brings back the hurt and pain they have experienced. However, a victim may ask the Prison Service, through the prison victim liaison officer, to be notified if an offender is to be given temporary release and such a request will be met. That is the current practice. In addition, the Prison Service will, if requested by the victim of a serious sexual or violent offence, notify the Garda prior to the release of the perpetrator from prison, either on temporary release or at the end of their sentence. Where the concerns of a victim or their family have been made known to the Minister, the Prison Service or the parole board, conditions may be imposed on the grant of temporary release if such temporary release is considered appropriate.

The amendment moved in the Dáil, which I outlined earlier to Senators, deals with the considerations the Minister must take into account in deciding whether to grant temporary release. The section has been amended to include a reference to the potential threat to the safety or security of the victim of the offence to which the sentence of imprisonment being served relates as a further consideration. Senators may wish to develop further ideas on this matter on Committee Stage and I will examine them with interest.

Senator Terry struck a slightly contentious note in relation to the Minister's position. This legislation was formulated when Deputy O'Donoghue was Minister. It was he who brought this matter to the Government, in the form of heads of a Bill, for approval. The Minister, Deputy McDowell, has had a remote enough connection with this legislation.

Ms O'Rourke

I think Senator Terry was talking about 1994.

Ms Terry

I accept that I should have referred to the previous Minister but that is irrelevant now. Deputy McDowell is the Minister.

Mr. B. Lenihan

Deputy McDowell is the Minister, but the Bill was piloted through the other House by the Minister of State, Deputy O'Dea, and me and it seems fated to be piloted through this House by me.

There was a suggestion by Senator Terry that a grave abuse of ministerial power had been uncovered by the courts. However, in the Corish judgment – the decision of Mr. Justice O'Neill, to which Senator Terry, very fairly, referred – which was delivered on 13 January 2000, the Minister and the Department were faulted on a very technical point. The point at issue was that the Minister had drawn up regulations to exercise his powers under the 1960 Act and had expressly excluded certain offences. He had said he would never consider temporary release for certain offences. That is a reasonable step for a Minister to take but the view of the High Court was that the 1960 legislation, the parent Act, did not empower the Minister to impose that type of restriction by regulation and, hence, the regulation was invalid.

Lawyers can be lawyers and jurists can make points and I do not question the correctness of that judgment. However, it is a technical point of statutory draftsmanship to fault the Minister for regulations drawn up on that basis where, clearly, successive Ministers of many different political colours acted in good faith in administering this system and did so for the protection of the public. The High Court was telling us – it is a fair point – that we should have dealt with this matter in primary legislation and that it was not an appropriate matter to be regulated in detail by ministerial regulation. Most speakers accepted that point today.

Senator Terry referred to an interesting Supreme Court decision on the general situation of statutory instruments. There are a number of court decisions which may have far reaching implications for the validity of our current collection of statutory instruments. However, that matter does not arise in this context.

The courts have always served as watchdogs of the Oireachtas and we must have this dialogue with the courts as we hammer out the detail of this legislation.

Ms Terry

May I ask the Minister of State for clarification?

Acting Chairman (Mr. Finucane): Senator Terry, you must discuss the matter on Committee Stage.

Mr. B. Lenihan

Does Senator Terry's query relate to the Corish case?

Ms Terry

Was the Government exposed in terms of damages?

Mr. B. Lenihan

I wanted to deal with that question and I am glad the Senator reminded me of it. It is my understanding that the State has never been exposed in damages from a person who objected to the temporary release of an individual. There has been no liability there and no clause in this Bill seeks to exonerate the State from any such liability. In any event, the State would not accept liability in such a remote contingency. The fact that I have reassured the House that there is not an exoneration clause in the Bill should not be taken as an indication that there is any liability on the part of the State in such circumstances in the first place.

Senator Walsh said there was a clear onus on the State to assist in the rehabilitation of offenders and I agree with him. He was concerned with the provision in the Bill relating to the government of prisons and to the fact that the Minister has retained power, under paragraph 1(1)(c), to grant temporary release to ensure the good government of a prison or to maintain good order in, or the humane and just management of a prison. As many Senators acknowledged, the problem of the revolving door in the penal system is no longer with us. Nevertheless, the Minister has retained this power should it be required.

Many situations can develop in the administration of the prison system. A fire or a large scale riot could cause an entire prison to be destroyed and in those circumstances the Minister could not be expected to construct another prison in 24 hours, or in 24 months. Senator Tuffy has considerable experience of the reaction of the public when one seeks to establish a penal institution in a particular locality. The Minister must have this reserved power. In the past, temporary release was granted on the basis that there was overcrowding resulting from court decisions and releases were granted in an unstructured way. That is a feature of the past, due to the provision of additional places. Although the current system does not give rise to such requirement it would be short sighted not to provide, in primary legislation governing temporary releases, for such circumstances in the future in case events were to occur, even if short term in character, which would require such a provision. Senator Walsh's point was a fair one but the Minister would maintain that he needs this power.

Senator Walsh was under the misapprehension that there are no categories which could not be considered for temporary release. Under paragraph 1(3)(b) the Minister may not give a direction granting temporary release where the release of that person from prison is prohibited by or under any enactment. The Oireachtas has provided for that prohibition in certain enactments.

All Senators stressed the importance of rehabilitation. As Senator Tuffy pointed out, the Bill is only a legislative basis for temporary release. It provides the bones necessary for the purpose, but the flesh must be provided for in a range of educational facilities, rehabilitation and work training programmes.

It is important to remember that temporary release can form an integral part of a mechanism to prepare prisoners for eventual release back into society in a planned manner which will assist and encourage them to take up more positive and law-abiding lives and ensure they are not a risk to society.

Pre-release preparation can include transfer to a less secure institution or an open prison, supervised outings, unsupervised outings, opportunities to attend work experience or training and residential treatment for alcohol or drug addiction. In addition, the Prison Service provides a wide range of rehabilitative programmes which provide prisoners with the opportunity to engage in useful and purposeful activity while serving their sentences and serve as an incentive for them to lead non-offending lives on release. In addition, most offenders will have had contact with the probation and welfare officers, the prison education service and other services within the prison to facilitate preparation for their return to the community.

Voluntary after-care support is offered to all prisoners after their release through the probation and welfare service. Released offenders are encouraged and facilitated to link up with community based agencies dealing with educational and vocational training, alternative accommodation, job placement and substance abuse treatment. Many of these services are provided by voluntary bodies and community groups. Some operate under the aegis of the probation and welfare service and others accept referrals of offenders who are supported financially in their work by the Department through the probation and welfare service. The national development plan will also, through prison work programmes such as the Connect project, make a significant contribution to preparing offenders for employment. In addition, the Linkage programme advances employment placements.

The Prison Service plans to establish halfway house type units near Cork and Limerick prisons for both men and women. I am not sure if I should be announcing this in the House this afternoon but that is the intention of the Prison Service.

The Dóchas centre in Mountjoy women's prison already has a pre-release unit which accommodates up to seven prisoners who are generally nearing the end of medium-term to long-term sentences and are actively engaged in rehabilitative programmes such as education and work training.

Senator Henry spoke of the tremendous work being done by the Prison Service and I very much appreciated her contribution in that respect. Anybody who visits the Dóchas prison, where many of the State's female offenders are now held, will be very impressed by its facilities. As Senator O'Rourke pointed out, female offenders are not really as difficult to deal with as male offenders, but the facilities that have been put at the disposal of female offenders in the Dóchas prison serve as a tremendous tribute to the work of the prison staff.

One point of Senator Henry's with which I disagree is that the Minister should be distanced from the issues regarding the parole board and the temporary release of prisoners. She questioned if decisions in this respect should be political in character. I know that politics in general is in bad odour at present, as are some parties. We give Ministers powers because they are accountable to Dáil Éireann but when we give boards important legal powers in areas touching upon the liberty of the citizen, we are giving powers to people who are not accountable to anybody. They produce a glossy annual report which we receive in our correspondence. Ultimately, Ministers can be called to account if they make an unsuitable temporary release. It is a very serious power for a Minister for Justice, Equality and Law Reform and one to be exercised with great care. Ministers for Justice, Equality and Law Reform are reminded only too often by their officials of the perils of exercising the power of temporary release. I am not sure if it is a bad thing that the Minister should have some final say in the exercise of such a power.

On the question of educational facilities for prisoners, I am glad to inform the House that I, as Minister of State with responsibility for children, took a very close interest in the refurbishment of St. Patrick's Institution by the Prison Service, which is now complete. Many expressed concern when it was stated that the original purpose of this facility was to detain persons under 16 years of age. This was the original Government decision on the matter prior to the last general election. I am sure most Senators would agree that it is good that it changed its mind and that the facilities will now be put at the disposal of 16 and 17 year old offenders. I have sanctioned the engagement of a number of teachers for these offenders so we can at least start mirroring the proposal in the Children Act that the Department of Justice, Equality and Law Reform should establish dedicated facilities for offenders in this age group. We are still some way from this, but at least we now have an entire wing of St. Patrick's Institution, with a high educational emphasis, which will be dedicated to 16 and 17 year old offenders. This is an innovation in our penal system and I am very glad to be part of it.

Senator Maurice Hayes also raised the issue of the rehabilitation of offenders and the question of restorative justice. It is true that we need to engage in further development of restorative justice in our criminal justice system, as provided for in the Children Act.

The Garda diversion scheme, which seeks to deal with those juvenile offenders who have not yet come before the courts but who are starting to offend, has been very successful. It has built on the old juvenile liaison scheme and has incorporated thinking on restorative justice. Many training sessions have taken place with the staff of the juvenile diversion scheme on restorative justice techniques.

The restorative justice idea originated in New Zealand, where the Maoris used it in the settlement of their tribal differences. The idea is that the offender should be confronted by the victim. It is most appropriate in respect of juvenile offending and it is being extended in this area. I know the Garda has been extending it in its work on juvenile justice. Senator Hayes is correct in stating that we should examine restorative justice on a wider basis in the penal system.

Senator Kett asked about reoffending. The Department does not have exact statistics on this but it is examining a project to establish with greater certitude the record of the penal system.

The Department of Justice, Equality and Law Reform is not always the most popular Department. It has a very difficult job to do in this area because, generally, those who are sentenced to prison are those in whom other Departments do not have a huge interest.

Question put and agreed to.

Committee Stage ordered for Tuesday, 14 October 2003.

Sitting suspended at 5.30 p.m. and resumed at 6 p.m.

Seanad Éireann díospóireacht - Wednesday, 8 Oct 2003

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

Seanad Éireann díospóireacht -
Wednesday, 8 Oct 2003