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Seanad Éireann díospóireacht -
Wednesday, 15 Oct 2003

Vol. 174 No. 4

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

SECTION 1.

I move amendment No. 1:

In page 3, line 17, to delete "direct" and substitute "give a direction in writing".

The purpose of this amendment is to give clarity to the wording of the Bill. It is important it is clear that the direction by the Minister should be in writing. I would like to hear the Minister of State's comments on that.

The provision, as currently framed, allows the Minister to direct the temporary release of a prisoner having regard to the purpose of such release and the considerations the Minister must take into account before deciding whether to grant temporary release. The Senator is seeking a written direction but it is always open to a Minister to make a decision orally and provision has been made in a separate amendment to have any such oral direction recorded to writing. It is not intended to change section 4 of the 1960 Act which provides that where the release of a person is made subject to conditions, these shall be communicated to the person at the time of his release by a notice in writing. A notice in writing is sent to the person released informing them of any conditions.

While the Minister's direction may also include conditions, both standard and specific to the prisoner in question, the written conditions referred to in section 4 will be included in the notice for temporary release given to the prisoner by the governor or the Prison Service. Such a written notice would always be given to a prisoner when granted temporary release, regardless of the circumstances or urgency of the case.

However, some flexibility must always be maintained in the administration of the scheme. To specifically provide that such directions can only be in writing could be extremely inflexible in an emergency. For example, the Minister could be attending a meeting in Brussels. There are many such meetings in the evolution of the justice pillar and an urgent circumstance might arise where a decision would have to be communicated orally by the Minister. While the importance of written directions in this area cannot be overstated, it is important to be realistic in relation to catering for unexpected events that can occur.

A similar amendment was proposed in the Dáil and in order to deal with concerns on this issue, an amendment was made to section 1(5) to provide that the governor shall make and keep a record in writing of the direction given to the prisoner. This ensures that a record is always kept but allows the flexibility required, especially at weekends or late in the evening. The practice for a prisoner in all circumstances to receive a notice in advance of his or her temporary release setting out the period of temporary release and the conditions which apply to that period will not change and the provisions for this will be contained in rules which we have made in accordance with the amendment. I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 3, lines 17 to 19, to delete "such person as is specified in the direction (being a person who is serving a sentence of imprisonment)" and substitute the following "a person who is serving a sentence of imprisonment".

I welcome the Minister of State. I propose the deletion of the words "such person as is specified in the direction (being a person who is serving a sentence of imprisonment)" as they are a classic case of tautology. It is important that legislation is clear. The words are unnecessary and add nothing to the effectiveness of the legislation, so I ask the Minister of State to accept my amendment.

The formula of words used in the subsection was chosen with deliberation by the Parliamentary Counsel. The wording introduces the notion of a direction being issued by the Minister. This is important when one remembers the reason for the Bill, which is to provide a clearer legislative basis for the powers of the Minister to grant temporary release.

The approach used introduces and defines the term "direction" thus avoiding the need for the term to be separately defined elsewhere. The structure of the Bill is then based on the subsequent use of the term "direction" which is used throughout the later subsections. I agree with Senator Terry that the particular sentence could be read more concisely if her amendment was accepted. However, it must be recognised that to accept the amendment would cause problems elsewhere in the overall text of the Bill by upsetting the premise on which other subsections are constructed, namely that the term "direction" has been defined at the outset and is then referred to throughout the Bill.

The Senator will notice that the Bill, unlike many such Bills, does not contain a definition section. There is clarification in section 1(10) and (11) of the meaning of what is a probation and welfare officer and references to other enactments. There is not a section in this Bill defining the terms used in it, although such a section is often included in legislation. Therefore, the other cumbersome formula used at the inception of the measure is to clarify the concept of a "direction", which is one of the key concepts of the Bill. If the draftsmen had chosen the route of inserting a separate section defining "direction", I could have accepted the amendment proposed by Senator Terry. However, I regret that I am unable to do so.

I am disappointed that the Minister will not accept my amendment. He knows that the Law Reform Commission previously criticised the wording of legislation and asked that legislators keep this point in mind when drafting legislation. This particular wording is a classic case and I would expect the commission to point out that this is not the wording it would have preferred. I have to accept the Minister's word on this, but I am disappointed by his decision.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 3, line 20, after "period" to insert "(including such time or times in the course of a period so specified)."

The purpose of the amendment is, instead of using the term "such a temporary period", to make it clear that the legislation includes periods within that temporary period. The case of a prisoner being released on a day to day basis, for example, to take up a job, but being required to return to the prison in the evening would be clearer in the legislation if the amendment was accepted. This matter also arose in the Dáil but the Minister's response was that it was not necessary to insert this wording. However, why not spell it out so that the intention of the legislation is clear?

I assume that the intention of this amendment is to provide that, within a certain overall time period – I am not sure how or in what circumstances this would be determined – a prisoner can be granted specific periods, or blocks, of temporary release. Presumably, the Senator is referring to cases where temporary release is granted for specific hours each day and for a specific number of days or weeks to attend a training course. In any event, I am satisfied that the provisions of the Bill which allow for the granting of temporary release for specific purposes and specific periods of time, subject to the relevant conditions that apply, meet such circumstances.

The current wording of the Bill is effective and allows for full flexibility in determining the times and periods for which temporary release is granted and allows that the person may be on a temporary release for a period of a number of days, or on a day to day basis for a number of hours. I do not accept that the amendment gives any added value to the Bill. It may only lead to confusion and, therefore, I do not intend to accept it.

Amendment, by leave, withdrawn.

Amendments Nos. 4 to 6, inclusive, 8, 11 and 13 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 4:

In page 3, line 25, to delete "him" and substitute "the person".

This issue was also raised in the Dáil. The Labour Party feels that any new legislation should refer to both genders. I am aware that the Minister argued in the Dáil that the interpretation of legislation allows for the term "he" to be interpreted as "he" or "she". This is new legislation and from now we should not refer solely to "he". Legislation should be gender-proofed and this is the way to do it. The amendment deliberately does not refer to "he" or "she" in deference to maintaining the drafting conventions of the principal 1960 Act. However, it is correct at this stage to use terms such as "the person" instead of "he". I am interested in the Minister's response.

I support Senator Tuffy's amendments. It is time that legislation accurately reflected our laws in terms of equality and accuracy and "person" would describe either male or female. That is how we should deal with legislation and I ask the Minister to accept the amendments.

I assume the purpose of the Senator's amendments is to gender-proof this particular Bill. All new legislation is now gender-proofed in that it always refers to "he or she". Where the purpose of the legislation is to amend older legislation, such as in this case, amendments are drafted in the same gender as the original Act. This is the particular issue highlighted by the amendment. The Criminal Justice Act 1960, which this Bill amends, was drafted using the masculine gender – hence the use of "him" and "his" in this Bill. As Senators will be aware, the Interpretation Acts of 1937 and 1993 provide that in every Act, every word importing the masculine or feminine gender, unless the contrary intention appears, is construed as applying to the other relevant gender. The masculine is taken to embrace the feminine and vice versa.However, similar amendments were proposed in the Dáil and it was suggested that the other sections of the 1960 Act, which are not the subject of this Bill, might be amended and gender-proofed. The Office of the Parliamentary Counsel was consulted and its strong advice was that this would create a huge additional workload which would have huge resource implications for all legislation. Were we to set about gender-proofing the earlier provisions of the 1960 Act, clearly a precedent would be established which would require us, in the case of any legislation amending older legislation which was not gender-proofed, to gender-proof the entirety of the older legislation as part of the amending legislation. I am sure Senators are aware of the large number of Bills considered in the Houses of the Oireachtas which amend older legislation.

I reiterate that new legislation is automatically gender-proofed, but this is not new legislation in the sense that we are amending older legislation which was not gender-proofed. In any legislation which remains pre-1993 legislation, the practice is to use the same gender as is used in the original Act. This approach applies equally to both genders. An issue of this kind has to be primarily a matter for the professional judgment of the Office of the Parliamentary Counsel and the Department must be guided by that advice.

I do not intend to accept the amendments. It is not a question of applying a male gender regime to legislation. The Office of the Parliamentary Counsel has assured us that it is a question of applying the appropriate terminology as suits the circumstances. Senator Terry referred to the need for plain and intelligible language in legislation. This Act must be construed as one with the 1960 Act and, in that context, it would be inappropriate to have a form of expression used in one item of legislation and a divergent form of expression in the other.

I do not accept the Minister's response or that he is correct that if our amendments were accepted, it would be necessary to amend previous legislation. One of the reasons for this is modern expectation, which is why new legislation is gender-proofed. The amendments to the legislation should be gender-proofed.

Obviously I will not persuade the Minister of State to change his mind today, but I ask him and his Department to examine the issue again. The Labour Party does not accept that our amendment would require the Government to gender-proof, amend and redraft all previous legislation. Therefore, the Minister of State's reasoning for not accepting the amendment is incorrect and I ask him to re-examine the issue with his Department in that context.

The Department is embarking on a programme for the consolidation of the entire criminal law, which will be dealt with on a gender-proofed basis because it will be a consolidation of the entire corpus of criminal law. It will afford the Department the opportunity of gender-proofing many of the older enactments which were not gender-proofed at the time. As I said in my initial reply, all new legislation is now gender-proofed. The Long Title to this Bill makes it clear that it is a Bill to amend the Criminal Justice Act 1960. It would be inconsistent of us to simply amend the 1960 Act and gender-proof this legislation without reverting to the principal Act of 1960 and gender-proofing it too. The Office of the Parliamentary Counsel advised us that it would not have the resources to embark on that exercise were it to be a precedent in draftsmanship.

We must be consistent with our draftsmanship because a dialogue takes place between the Oireachtas and the courts as to how legislation is interpreted. If we do not have a consistent system in regard to drafting and if we pick and choose between how Bills are drafted, it is not a good way for us to do our business.

We may be speaking at cross purposes. The Labour Party does not agree with the view that the Government would have to redraft, amend or gender-proof the principal Act. We do not accept that it would be required or that the work, which the Minister of State said would be required, would be necessary.

Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 not moved.

I move amendment No. 7:

In page 3, line 29, after "Síochána" to insert "or any other authority concerned in the enforcement of the law, including an authority of another jurisdiction,".

The Labour Party believes that the way in which the power is currently drafted confines that power to releasing someone to assist in law enforcement with the Garda Síochána alone. The purpose of this amendment is to enable a release to assist the PSNI, for example, or the Director of Corporate Enforcement. I am interested to hear the Minister of State's response to this proposal.

The amendment provides for a person to be allowed temporary release to an enforcement authority other than the Garda and for a person to be made available to foreign law enforcement authorities.

The Garda Síochána has overall responsibility in this jurisdiction for the prevention, detection and investigation of offences. This amendment would only serve to add confusion to that. The Garda, as the primary body with responsibility for prosecuting criminal offences, would expect to be asked for assistance by any other bodies which might require it. As Senators are aware, there are many statutory bodies which have a role in the enforcement of the law, for example, the Health and Safety Authority, and I assume it is not intended to release prisoners on a temporary basis for the purposes of assisting these bodies.

In regard to the issue of making a person available for the purposes of investigations which involve another jurisdiction, procedures are already in existence for mutual assistance, under section 53 of the Criminal Justice Act 1994, to cater for such circumstances. That provision will be supplemented by the criminal justice international co-operation Bill, which is in the course of preparation and will give effect to a number of EU instruments and a Council of Europe agreement regarding mutual assistance.

These instruments contain provisions in regard to the temporary transfer of detained persons to other states or territories to assist in investigations which will allow for temporary release to assist with investigations in another jurisdiction where the prisoner has not consented. The regime for dealing with a prisoner who is required to be transferred to another jurisdiction or territory for investigation can be dealt with under this proposed legislation. This will provide a proper structure and a system of reciprocal and mutual international guarantee which will protect the interests of the sending and requesting states.

In these circumstances, it is inappropriate to include a provision in this legislation. The current position is that the consent of the prisoner is required for such international co-operation. When the legislation to give effect to these provisions comes into operation, that will no longer be the case and we will have the concept of extradition for questioning. The development of that area is sensitive and requires careful delineation of the responsibilities of the states involved and the rights of the parties to be subject to that process. The legislation to give effect to these provisions will be published in 2004. For those reasons, I do not propose to accept this amendment.

My understanding is that the amendment would provide for a situation whereby a person could be released to assist a body in another jurisdiction, for example, the PSNI. I appreciate what the Minister of State said about other legislation which deals with this area. However, this amendment would provide for the other legislation to be in keeping with it in terms of the growth in cross-Border co-operation and the investigation of crime.

I take the Senator's explanation of the intention and thinking behind the amendment. I take it that the Senator is not opening the wider question of the removal from the jurisdiction of a prisoner for questioning. However, on the narrow question, the Garda Síochána is the primary investigative authority in the State. Furthermore, some investigative authorities, such as the Office for Corporate Enforcement, have gardaí on their staff. The request to question a prisoner must be made through the Garda. Therefore, the amendment is superfluous since the request from an investigating body in another state, which wishes to investigate or question a person in Ireland, must come to the Garda. They cannot arrive at the gate of the prison and open the latch themselves.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.

Acting Chairman

Amendments Nos. 9, 10 and 17 are related and may be discussed together by agreement. Is that agreed?

I read these amendments and have some sympathy with them. However, the import of amendment No. 17 is different from that of amendments Nos. 9 and 10. Therefore, I suggest we deal with the amendments separately, although it is up to their proposer to agree.

It might be better to discuss the other amendments first as it will be easier to deal with amendment No. 17 depending on the outcome of the other amendments.

Acting Chairman

Is it agreed that we will discuss amendments Nos. 9 and 10 together and amendment No. 17 separately? Agreed.

I move amendment No. 9:

In page 4, between lines 19 and 20, to insert the following new paragraph:

"(d) any representations made by the victim or next-of-kin of the victim on the proposal to direct the release of the person from prison,”.

On Second Stage I discussed the need to strike a balance between the rights of victims as against those of the criminal. I suggested that I would bring forward an amendment on Committee Stage to provide, in particular, for victims to be informed of a proposal for the early release of a prisoner. I hope the Minister of State will now accept this amendment. In dealing with legislation such as this, we must keep victims' rights in mind.

The prison service has to deal with prisoners and their rehabilitation, so I wish to quote an acknowledgement of victims of crime from a submission by that service. It stated the service wants "to ensure that in all cases where temporary release is being considered, any potential risk for the victim is taken fully into account". In order for the prison service to take this fully into account, the legislation should provide for the right of victims to be informed of a proposal that a prisoner is going to be released. Far too often we hear of a victim bumping into the perpetrator on the street. We all know about the plight of victims so we can now help to avoid such situations arising in future. The Minister of State should consider accepting this amendment.

I am in agreement, in large measure, with Senator Terry's amendment. We covered this point fairly well on Second Stage. Much of our law concentrates technically on the offender and offences, while the victim is often sidelined. We need to inject a change into that type of thinking. There are many fine examples of where jurisdictions have moved the victim to centre stage, thus having a rehabilitative effect on the criminal. The issue of restorative justice has operated well in other countries and is now being examined here with some pilot schemes in place. We should try to apply that concept more widely to the existing legal system.

One caveat is that a report arising from consultations with the victim should not prejudice a decision not to grant temporary release, thus leaving it open to the prisoner to take action that would prejudice the case in some way. The Minister of State might deal with that caveat in his reply. The Minister of State must have regard to various issues, including the idea that the victim should be part of the process. I am encouraged to take that line, given the range of issues involved, as well as the sentences imposed and recommendations that courts may make. There is much evidence of inconsistency in sentencing by judges dealing with similar offences. There is no reference that that evidence at a trial is being taken into account, which may leave it open to victims to refer to some issues they may wish to bring to the Minister of State's attention before a decision is made to release a prisoner. I ask and encourage the Minister of State to accommodate this amendment without prejudicing the decision and, thus, perhaps leaving it open to challenge. I hope that much of the legislation emanating from the Department of Justice, Equality and Law Reform in future will take more account of victims than has been the case heretofore.

While I support the intention of Senator Terry's amendment, the Labour Party's amendment No. 10 is making a slightly different point. An amendment made on Report Stage in the Dáil sought to involve the victim more in legislative terms, which is an important change. Amendment No. 10 states that it is not just the victim of the particular offence committed by a person in relation to their current prison sentence that should be taken into account, but also any other offence committed by them. It is important to consider the safety and security of a prisoner's victim or victims. It would not necessarily mean that a prisoner would not be released but it may mean that conditions would be attached to their release. The amendment, therefore, seeks not just to deal with victims in terms of the offence to which a period of imprisonment relates, but also other offences committed by the prisoner. The impact of the prisoner's release upon the victim or a member of their family should be considered.

As I indicated on Second Stage, I have considerable sympathy with the proposed amendment and I said I would look forward to it with interest. There are difficulties with this matter, however, because when we talk about the interests of the victim in the criminal justice system, the person who is convicted and sentenced for an offence has a definitive sentence imposed upon them. In imposing sentence, the court frequently refers to the need to protect victims and to protect the public from this kind of offence, as well as marking the wrong done to the victim. That is the reason for sentencing. It has been suggested that the Department of Justice, Equality and Law Reform should take more account of victims but no other Department is more concerned with victims than this one. We have a system of justice which is designed to deal with persons who perpetrate offences. The philosophical problem is that the concept of temporary release, which as a matter of principle is desirable for the humane administration of a prison, is inconsistent with the idea of serving the entire sentence that has been imposed on an offender. It is important to operate a system of temporary release that is objective, transparent and that operates under a specific set of criteria, which is legally sustainable. From the debate last week, it is clear that all Senators understand the reasons behind and the purpose of the temporary release system. If there was no possibility of temporary release it would be an inhumane prison regime, which I am sure none of us would wish to see in place.

If one accepted Senator Terry's proposed amendment relating to representations from the victim or the next of kin concerning a proposed temporary release, it would be very difficult to operate a system of temporary release as it is likely that a large proportion of the representations from victims or their relatives would set out reasons why the person should not be granted temporary release. As matters stand, of course, the Minister can receive representations of that character but to transfer them onto the statutory plane, which is what is being proposed in that amendment, would create a statutory obligation on the Minister to take these representations into account. Were the Minister not to take those representations into account on a consistent basis, he or she could be taken to task in the courts for abusing his or her powers under the system of temporary release. This would create great difficulty in the administration of the entire system of temporary release.

If I accepted Senator Terry's amendment there would be a statutory obligation on the Minister to take these representations into account. In these circumstances, the Minister might be unable to grant a prisoner temporary release, even though other factors indicated that temporary release should be allowed for rehabilitative or other purposes. Where the concerns of the victim, or his or her family, is made known to the Minister, to the prison service or to the interim parole board, appropriate conditions may be imposed on the granting of temporary release if such temporary release is considered appropriate. The difficulty of the Minister concerns what representation the victim can make in this context. As was hinted at in Senator Terry's amendment, the victim can only seek to veto the temporary release. A victim might write to the Minister and urge him or her to allow the person to be released, but that is a more unlikely circumstance. The more likely circumstance is that the victim would write to the Minister, or the next-of-kin, as Senator Terry has carefully formulated, objecting to the release and outlining the hurt, pain and trauma it would cause to the victim. Of course, the original sentence of the court seeks to address this in the first instance. We must administer the system of temporary release because we must operate the penal system in a humane manner. While such representations are made, and the Minister attempts, having decided whether to grant temporary release, to decide whether these particular representations can be accommodated in the form of conditions, nevertheless there is a fundamental difference between that procedure and elevating it to a statutory formula that requires the Minister in all cases to have regard to that factor. The practicality is, however, that were this to be legislated for, the Minister would find himself in a position whereby his exercise of ministerial powers would eventually be called into question in the courts.

On Senator Tuffy's proposal, Senators will be aware that subsection (2) sets out the considerations which the Minister must take into account in deciding whether to grant temporary release for one of the purposes set out in subsection (1). Subsection (2)(d) provides that the Minister should have regard to the potential threat to the safety and security of the public should a person be released from prison. As I stated on Second Stage, the latter provision was amended following discussions in Dáil Éireann. This now also includes a reference to the potential threat to the safety and security of the victim of the offence. The safety and security of the victim of the offence to which the sentence of imprisonment being served relates is a statutory matter which can be taken into account. This consideration as a matter of law must be taken into account by the Minister.

What Senators Tuffy, Ryan, O'Meara, McDowell and McCarthy are proposing is that this be further amended to include a victim of any other offence committed by the person, or a member of the family of a victim. I point out to Senators that subsection (2)(d) already specifically provides for the potential threat to the safety and security of members of the public which could include any such persons. Other considerations which the Minister must take into account include the person's previous criminal record, the conduct of the person while in custody or while previously on temporary release, the nature and gravity of the offence, the sentence of imprisonment and any recommendations of the court. It is important to remember that under subsection (3) a prisoner cannot be granted temporary release if the Minister is of the opinion that for the reasons connected with any one or more of these it would not be appropriate to do so.

Following what the Minister of State said, he is certainly tipping the balance in favour of criminals. He indicated that he would be open to accepting an amendment. If that is the case, I am disappointed he will not accept my amendment. If he believes in balancing the rights of victims with those of criminals, why did he not table an amendment to provide for these rights? If he does not accept my amendment, I would have expected him to table an amendment in view of his comments on Second Stage. My amendment proposes that the Minister shall, before giving a direction under this section, have regard to any representations made by the victim. I do not believe that will tie the Minister into denying temporary release to a prisoner if he or she deserves it on all the other grounds. It gives the victim an opportunity to put forward his or her views or suggestions and the Minister must then decide whether these representations are strong enough to deny the prisoner the right to temporary release.

Perhaps the Minister was told by the real Minister before he came in here today not to accept this amendment. I am sure the Minister of State is big enough to stand up for himself and make his own decisions. I ask him to reconsider and accept my amendment.

On the Labour Party amendment, the legislation accepts that the victim's safety and security should be taken into account. The purpose of the amendment is to broaden the scope of this to include victims of other offences and family members. In response to the Minister of State's reason for not accepting the amendment, if he mentions victims of a particular offence as distinct from members of the public, surely he should mention other victims of that particular criminal as distinct from ordinary members of the public. For example, a prisoner could be serving a prison sentence which could immediately relate to a particular offence but he or she might have previously served a sentence for another crime against another individual. Similarly in relation to family members, Senator Terry's amendment indicates that the family is especially affected by the crime as distinct from other members of the public. We believe they should be mentioned specifically together with the general public.

I empathise with much of what the Minister of State said in this regard. A particular difficulty with the amendment is that every crime does not necessarily have an identifiable victim. I also admire the Minister of State for defending his Department. He may or may not agree with me that there are many victims who might not necessarily share that view and who feel their particular plight is not always given the significance it deserves when decisions are being made.

The Minister of State made an interesting point in his speech. He rightly pointed out that while victims are not specifically mentioned they could make representations if they were aware of the potential release of a prisoner who had offended against them. The point he was making was that any good points the victims might make could be applied on certain conditions, which might bring new information to the process. In that regard, and acknowledging that consideration of the release will happen without their knowledge, that valuable information which could be part of the process of consideration is missing from the framework. Perhaps the Minister and the Department might examine some way of taking that into account. We are talking about an important exercise of duty by the Minister in the temporary release of prisoners, which could have serious effects for individuals. Like everything in life, not all early releases are successful. There have been cases where people have reoffended with more serious crimes. I know the Minister and the Department are anxious to deal with that. We should include in the legislation every possible precaution to ensure that does not happen.

As regards the views of the victim, paragraph (h) refers to any report of, or recommendation made by a number of bodies, including the governor, the Garda etc. I would like to think that if a prisoner is released early back into the community of which I am a member, the local gardaí would have an input by way of a report. I am not saying the Garda Síochána should be the deciding body, although it would probably have the best information about the person behind bars and it would probably be more knowledgeable than the governor or prison officers about the offence committed. Paragraph (h) refers to any report of – there may not be a report – or recommendation made by the governor, the Garda Síochána etc. However, there should be some line of communication with the local gardaí so their views are available to the Minister to assist him in making the correct decision about an early release.

We all subscribe to the rehabilitative nature of the early release programme. However, we should give equal priority to the safeguarding and security of the community into which that person is released. I would probably put more weight on that than on the rehabilitative aspect. Perhaps I am wrong to do that, but it should at least be equal. I would like to think we would make this legislation as good as we can. There will still be cases which will not work out satisfactorily or as intended by the Minister, the Department or society. However, we should try to ensure a minimum level of safeguards. Consultation with the victim and the local gardaí is an important and valuable component of the process of early release.

This legislation entrusts a grave and fundamental power in the Minister for Justice, Equality and Law Reform. He would be a foolish man if he did not consult with the Garda Síochána or the victim. That is not the issue here. Victims make representations to the Minister for Justice, Equality and Law Reform. The Minister makes the most minute inquiries, particularly in the case of serious offences, with the relevant officers of the Garda Síochána. The difficulty is that the Oireachtas has entrusted this power to the Minister for Justice, Equality and Law Reform. I am sure it is not a power which any Minister for Justice, Equality and Law Reform takes any pleasure in exercising. However, he must make that decision and he is accountable to the other House in the exercise of that decision.

The difficulty with the amendment does not stem from any of those matters but from subsection (3) which states:

The Minister shall not give a direction under this section in respect of a person–

(a) if he is opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so do.

If I accept Senator Terry's amendment, that will become "one of the matters referred to in subsection (2)". The substance of her amendment would then be translated into section 2. It would then be a matter in which the Minister could not give a direction "if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so do". Then we would have the vista of the courts intervening and suggesting at the behest of a victim that the Minister should not have formed a particular opinion in relation to a temporary release. That would be an undesirable state of affairs. The Oireachtas, for better or worse, has to entrust this power to a person who is at least accountable to the Oireachtas. That is what we are legislating for here.

I do not accept that in refusing to accept this amendment there is any suggestion that this is rebalancing the rights of the criminal and the victim. The person we are talking about is not the criminal facing conviction, but a prisoner serving a sentence. It is important to note that the first factor set out in subsection (2) is the "nature and gravity of the offence to which the sentence of imprisonment being served by the person relates". That directly relates to the punishment of the offender for the wrong done to the victim. That is placed uttermost in the Minister's mind by this Bill. The "nature and gravity of the offence" is the first consideration listed. It must be a factor taken into account in an objective sense by the Minister when arriving at an opinion to direct a temporary release.

While I understand the spirit in which the amendment was proposed, having considered the matter without any assistance from Big Brother, I independently arrived at the conclusion that it is dangerous to legislate for verities in which we all believe but which may lead to difficulties in the future. The practice of the Minister in the administration of this section is to entertain representations from victims, which he must do. However, if we accept the amendment, we would translate them on to the plain of positive enactment which could impose substantial legal obligations on the Minister in what must be a system operated on a discretionary basis.

Amendment put.

Bannon, James.Bradford, Paul.Browne, Fergal.Burke, Paddy.Burke, Ulick.Coghlan, Paul.Cummins, Maurice.Finucane, Michael.Hayes, Brian.Henry, Mary.Higgins, Jim.

McCarthy, Michael.McDowell, Derek.McHugh, Joe.Norris, David.O'Meara, Kathleen.O'Toole, Joe.Phelan, John.Ryan, Brendan.Terry, Sheila.Tuffy, Joanna.

Níl

Bohan, Eddie.Brennan, Michael.Callanan, Peter.Cox, Margaret.Daly, Brendan.Dardis, John.Dooley, Timmy.Feeney, Geraldine.Fitzgerald, Liam.Hanafin, John.Kenneally, Brendan.Kett, Tony.Lydon, Donal J.MacSharry, Marc.

Mansergh, Martin.Minihan, John.Mooney, Paschal C.Morrissey, Tom.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.O'Rourke, Mary.Ormonde, Ann.Phelan, Kieran.Quinn, Feargal.Scanlon, Eamon.Walsh, Jim.Walsh, Kate.White, Mary M.

Tellers: Tá, Senators U. Burke and Terry; Níl, Senators Minihan and Moylan.
Amendment declared lost.
Amendments Nos. 10 and 11 not moved.

I move amendment No. 12:

In page 4, between lines 35 and 36, to insert the following new paragraph:

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

The Labour Party proposes that one of the considerations should be "any representations made by or on behalf of the person". The reason for proposing this amendment is that we are of the view that it should be a standard provision in the legislation. For example, in section 3 of the Immigration Act 1999 the Minister must have regard to representations before deporting a person. A similar provision should be part of this legislation. I look forward to hearing the comments of the Minister of State.

The granting of temporary release is not a right but a privilege for which a person serving a term of imprisonment can apply and which is granted at the discretion of the Minister. The amendment tabled by the Deputy provides that the Minister should have regard to representations made by the prisoner or on behalf of the prisoner. The former is already dealt with under the current system. The prisoner will set out the reasons temporary release is being sought and may include other information or facts which he or she considers relevant to their application.

With regard to the making of representations on behalf of a person, that could conceivably lead to circumstances where the Minister would have to consider representations made in all cases, regardless of their bona fides. That could lead to an unworkable burden being imposed on the Minister and, ultimately, would be a recipe for chaos. Therefore, I do not propose to accept the amendment.

I realise it is not a right. One of the main benefits of temporary release would be the rehabilitation of the prisoner. It is important also that their own case be made as well as all the other cases. Surely representations could be made by the person. If I recall correctly, the question of other parties making representations was raised by Senator Henry on Second Stage. On the broader issue of temporary release, other parties might make an argument on behalf of the person concerned on why it is beneficial and what exactly it is for. We have already referred to the importance of the victim. The reasoning behind temporary release is the benefit to society in terms of the rehabilitation of the prisoner. Surely their representations have to be considered. Why cannot others make representations on their behalf?

Having disagreed with Senator Terry about the position of the victim I now have to disagree with Senator Tuffy about the position of the prisoner. The Bill deals with what is viewed by us in the Oireachtas as a privilege, not a right. It is not a right to apply for temporary release. We would send out the wrong signal if we were to so legislate. If Senator Tuffy's amendment was accepted, it would follow that a person had a right to apply. Those in public life know how conscious our citizens are of rights. This is a person who is undergoing a sentence of imprisonment for commission of an offence which is serious enough to warrant a term of imprisonment. In those circumstances, I do not accept the Bill should include any implication of a right to seek temporary release. Although temporary release may have many of the benefits outlined by Senator Tuffy we should not legislate for a right to apply for it. In those circumstances, I am not prepared to accept the amendment.

Amendment, by leave, withdrawn.
Amendment No. 13 not moved.

I move amendment No. 14:

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

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

The purpose of this amendment is that humanitarian considerations, in terms of age and health, should be taken into account by the Minister. It is important that he would have regard to these basic elements in terms of his decision on whether to release a prisoner. To have that inserted would be in keeping with the previous subsection, where the Minister has to justify temporary release, for example, on grounds of health or for other humanitarian reasons. The Bill mentions later on "humane and just management of the prison concerned". Grounds of health has been acknowledged. Age or other humanitarian grounds should also be a consideration. The Minister has already acknowledged that those are factors in terms of the previous subsection in the Bill and they should also be included in terms of the subsection where he has to have regard to various things before making his decision. That would be a reasonable and humane way to deal with temporary release. I would have thought that should be current practice.

The advice from the Parliamentary Counsel is that the reference to health and humanitarian grounds, which are referred to in the amended section, is sufficient to cover this issue. As was indicated on Committee Stage in the Dáil, the Office of the Parliamentary Counsel has advised that caution must be exercised on the grounds contained in section 2(3)(a). That subsection requires the Minister not to give a direction for temporary release where he is of the opinion that it would not be appropriate to do so for reasons connected with one or more of the matters referred to in subsection (2). If a specific reference to age, which is proposed in this amendment, were to be included, it might have the effect of creating a problem about the release of a prisoner for whom age grounds did not apply, thereby leading to the opposite effect intended by the amendment. In this instance I must be guided by the advice from the Parliamentary Counsel that the amendment gives no added value to the text and I do not propose to accept it.

The previous subsection makes a provision for circumstances as they exist. Would the Minister of State consider adding age as a ground for appeal or has he an opinion on that?

I would be much more comfortable standing with what is already in the text of the Bill, where circumstances exist that in the opinion of the Minister justify a temporary release on grounds of health or other humanitarian grounds. Clearly age is comprehended in "other humanitarian grounds". I would be unhappy about further defining other humanitarian grounds to include age, because such a reference might only lead to further complications in the administration of the scheme.

Amendment, by leave, withdrawn.

I move amendment No. 15:

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

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

The purpose of this amendment is that, allowing for the possibility of risk, the Minister might also, in terms of setting out conditions, limit a release option. The prisoner would still avail of temporary release, but the victim, for example, would be protected because of the conditions attached. The amendment sets down that there would be conditions, by limiting the duration during specified hours, for example, or by providing an escort etc. Could the Minister of State comment on that?

What is proposed by the Minister is already comprehended in section 2(1), which provides that the Minister may direct that "such person as is specified in the direction shall be released from prison for such a temporary period and subject to such conditions as may be specified in the direction". Inherent in the practice in this area has always been the attachment of conditions for the protection of the public. No departure is envisaged in this legislation. The Minister can impose such conditions as he deems fit in relation to temporary release.

I am not quite sure what the purpose of the amendment is since it seems to be spelling out in greater specificity that power which the Minister has. It appears to seek to ensure that the Minister would not rule out temporary release, solely because of the element of risk. The reality is that temporary release by its very nature always involves some element of risk, even with conditions attached. The Minister has the responsibility to seek to minimise that risk as much as possible with the attachment of conditions that are suitable for the particular case. That is why the considerations which must be taken into account by the Minister before granting temporary release are so important. The primary concern has to be the safety of the public. That is adequately protected in the Bill before the House.

I understand what the Minister of State is saying, but we are concerned that the Act might not properly reflect the fact that there are different levels of release. It starts with release in handcuffs and the prison service escort. Subsection (3) says "the Minister shall not give a direction under this"– I stress "shall not", which is mandatory –"if he is of the opinion that for reasons connected with one of the matters referred to in the previous subsection" it would not be appropriate to do so. Is the Minister of State happy that the wording of the legislation would not prevent the Minister from having a more limited release if the different factors in paragraphs (a) to (k) are taken into consideration?

I am satisfied on that. In fact, without appearing to criticise the Senator in any way, I suggest that were we to accept this amendment which spells out particular types of condition which can be imposed by the Minister, we might trammel his power and ingenuity in imposing conditions in appropriate cases. It is, for example, the view of the Department of Justice, Equality and Law Reform that in an appropriate case a prisoner could be permitted to attend a funeral in handcuffs under the Bill as it stands. Clearly that would also be comprehended by the Senator's amendment. Other forms of restraint or device can arise, however, which may not be comprehended by amendment. To leave the Minister the power simply to set the conditions allows him to respond to the different circumstances that can arise.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 5, line 20, after "court" to insert ", unless such order is expressed to be subject to such temporary release (if any) as may be directed under this section".

The purpose of this amendment is to provide that a court would be happy, for example, while remanding a sick prisoner, to permit the person to be released temporarily for some special reason between remand dates. While it could be done by court order, we want to include this provision here because this sometimes might be inconvenient, for example during court vacations. We want to give discretion to allow temporary release by direction of the Minister.

The Minister is not sympathetic to this amendment. While a person is remanded for detention pending trial, clearly that person has been charged with a serious offence and the court has not seen fit to release the person on bail. That is a remand prisoner. Temporary release for such a prisoner has to be a matter for the courts because it is the courts that decided to remand the prisoner for trial and to remand him or her in detention pending trial. It is not the Executive but the court which made that decision.

I am aware that the Inspector of Prisons, in his first annual report, made a recommendation for change in this area. He was concerned about the issue of granting temporary releases for remand prisoners in special circumstances. The Senator outlined the circumstance of a sickness. Another circumstance could be a humanitarian one such as the funeral of a close relative. The court can grant temporary release but, because the trial has not yet taken place, there are difficult constitutional questions about whether we can empower the Minister for Justice, Equality and Law Reform to make a decision like that where the order remanding the person in custody pending trial has been made by the courts. The judicial process has been put in motion and as an aspect of that judicial process the particular prisoner has been committed to a trial court. I am not satisfied we have the power to do this even if we were minded to do it. Apart from that, as a matter of general principle it is undesirable because the person has been remanded on a serious charge by the courts. Plainly the court will in most cases have been invited to consider the option of bail and will be the body best equipped to make a determination on the issue of whether a person should be temporarily released.

The Senator makes the point that while under the court system it is always open to apply bail there are vacations and it may be difficult to contact a judge. Bail applications continue during vacation. They are the only regular sittings of the courts which take place throughout the calendar year because of the jealousy with which the courts have always protected the liberty of the citizen. They are available and their jurisdiction can be invoked even when the sessions of the court are on their well known vacation.

In light of what the Minister of State has said, I ask the Department to give further consideration to this, particularly in light of the recommendation of the Inspector of Prisons.

I am glad the Senator has acknowledged that the issues are complex. As they have been raised in the inspector's first annual report, the matter is under consideration and we are looking at possible options. It is too early yet to say what the likely outcome will be.

Amendment, by leave, withdrawn.

I move amendment No. 17:

In page 5, between lines 23 and 24, to insert the following:

"(5) Notice of a direction under this section shall be given to the person (or next-of-kin of that person) against whom the offence was committed.".

This amendment would ensure that the family or the victim would be informed of a decision to grant temporary release to a prisoner. I accept that the Minister of State was not in a position to accept my earlier amendment. This one is the least we can provide for victims and I hope for a positive response on it.

I did not give a positive response on Second Stage to this amendment. The amendment proposes that a notice of a direction of a temporary release should always be given to the victim or the victim's next of kin. There are already a number of options in place for those who wish to receive such information. A victim of a serious sexual or violent offence may ask the Prison Service, through the prisons' victim liaison officer, to notify the Garda prior to the release of the perpetrator from prison, either on temporary release or at the end of his or her sentence. That request can be made by a victim of a serious sexual or violent offence. In addition, a victim may also ask the Prison Service, through the prisons' victim liaison officer to be notified if an offender is to be given temporary release. It is important to remember that many victims of crime do not want to be informed of the temporary release of the offender as it may bring back memories of the hurt and pain they have experienced.

I accept that many victims do not want to be informed and that there are avenues for certain victims to be informed of a release, whether temporary or otherwise. We should have a blanket decision to inform all victims. The Minister of State has said that victims may not want to know but how can he know which victims do not want to be informed of the release of a prisoner? That is taking something for granted. The provision that all victims will be informed is what victims want. We constantly hear from victim support groups about the stress caused to victims when they do not know about the release. In order that some do not slip through the net we should insert this provision and thereby avoid the mishaps that occur when prisoners are released unbeknownst to the victim.

I have some sympathy with this amendment. However, the Minister of State has pointed out that many victims do not wish to be notified.

But we do not know who those victims are.

There is a body of opinion and the Minister of State has said that there are a number of victims who do not wish to know. The provision in the Bill is that they may request information. I would like to see a mechanism whereby victims would be advised, as I am sure they are by their legal representatives, that they may seek to be informed. Then, as a matter of form, they would be kept advised and notified. That is satisfactory. I had not thought of it but I do understand why certain victims would not want to know. They have got over the crime, are finished with it and do not want to be reminded of it. That is very human.

Rather than guillotine the Bill at 1 p.m. will the House agree that we extend discussion until 1.10 p.m?

An Leas-Chathaoirleach

Is that agreed? Agreed.

I do not know which victims wish or do not wish to be contacted. I do know that some do not wish to be contacted. The effect of the Senator's amendment would be that I or the Minister would have to notify every victim thereby causing some victims unintentional hurt. This is not the place where this particular issue can be raised. I made clear that there is a practice in the Department that a victim can ask the Prison Service, through the prisons' victims liaison officer to be notified if a person is to receive temporary release. It is an important issue. I am glad the Senator tabled the amendment if it gives us an opportunity to point out that this is the practice and that the facility is there. There is merit in Senator Walsh's proposal that there should be some legal mechanism when the offender is sentenced whereby the victim can be advised of this facility. However, I do not think it can be addressed in this legislation. It does not arise under a temporary release Bill.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 5, to delete all words from and including "or" in line 39 down to and including "subject" in line 41.

The Labour Party tabled this amendment because the way the section is worded at present would permit discrimination between classes of prisoners and that is undesirable. I raised that issue during the debate on Second Stage. The legislation is in part a response to the High Court case where this type of approach was struck down. It should not now be reintroduced through legislation. Many things have to be taken into account in terms of providing temporary release but it is wrong to make that decision on the basis of the class of crime committed. That type of approach could be subject to political pressure, or the media response to a particular crime or criminal, and that is not the right consideration.

All the other elements are right, the safety of the victim, the impact on society, the benefit to the prisoner, and most importantly, the long-term impact on society, but the type of crime or the class of prisoner are not the right considerations. They do not necessarily relate to society. It is an emotive matter by which we could all be affected but that should not be a matter for the Minister's consideration. The way the legislation is worded would allow for it to be considered and that should not be included. That is the purpose of our amendment.

Senator Tuffy wants to delete words which refer to classes of persons. I can reassure her that it is not the intention of this provision in the Bill to restore the old system of automatic or blanket refusal of particular categories of offender. The Senator expressed a concern that, due to prejudicial reporting of particular types of offence, the Minister might be so minded under these rules to formulate rules which would expressly exclude a whole category of offenders from consideration for temporary release. That is not the intention behind this part of the Bill. The intention is to allow the Minister prescribe rules on the conditions which can be imposed on persons granted temporary release. For example, standard rules apply requiring a person to keep the peace, be of good behaviour and of sober habits, during the period of release. That is a particular standard condition and the Minister can specify for that to be applied to classes of persons under these rules.

The second part provides that prisoners being released may have conditions attached to their release which are specific to certain types of offender. An example would be an attachment of a condition of curfew to the temporary release of a juvenile offender but I stress that such a condition will in no way impinge on the fact that each case will be taken on individual merits. It is not the intention of this Bill to reinstate powers to exclude categories of offender from temporary release. The subsection as now drafted allows for a more efficient, clear and effective way of operating the system of temporary release and provides for a regime of standard, as well as specific, conditions to be applied.

The proposed amendment would take away from the efficiency and clarity of the proposal. The provision envisages both standard conditions, such as to be of good behaviour and keep the peace, and that conditions can be specified for classes of offenders, for example, for juvenile offenders that a particular curfew is observed. That is all that is envisaged.

I still say that including the phrase "classes of persons" is wrong because it brings into the Minister's consideration the type of crime that has been committed by the person in question. Why specify? Surely the type of rules the Minister of State has mentioned with regard to juvenile offenders can be taken into consideration under the other provisions in the Bill and do not need to be spelt out here. In arguing against the amendments proposed by me and other Senators, the Minister of State has resisted specifying too much in the legislation, yet now he seems to be making an exception and I wonder why as it is unnecessary. Maybe I exaggerated slightly the impact of the phrase but it does start to differentiate between types of offender and that is the wrong approach.

Rules of thumb can help the administration and they can reassure the public about the system of early release. For example, while we do not have a substantial problem with football hooligans compared to some other jurisdictions, we do have a problem and it is not unreasonable for the Minister to lay down as a general rule for that class of offender that they should be prohibited from attending sporting events.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.

I move amendment No. 19:

In page 6, subsection (2), line 22, to delete "shall come" and substitute "comes".

This is a very simple amendment. It proposes to use the active voice in drafting legislation as recommended by the Law Reform Commission. We should adopt the commission's recommendations to use best practice and strive to ensure that the public can read our legislation by not writing it in convoluted language.

I am in some difficulty here because I am not aware of the recommendation of the Law Reform Commission. The commencement section reads, as the Senator indicated, in the future tense that the Act "shall come into operation on such day as the Minister may by order appoint". Senator Terry's amendment would replace that with the present tense "The Act comes into operation on such day as the Minister may by order appoint" or as Senator Terry used the expression, the active voice as distinct, I assume, from the passive voice.

I am not clear whether the Law Reform Commission recommendation suggests that the active voice should be used in place of the passive voice. The provision is a standard commencement provision and is the standard wording used and favoured by the Parliamentary Counsel's office. A random survey of ten Acts enacted over the past six years shows that the wording "shall come into operation" is the only wording used in the commencement section of that legislation and I would instance the Bail Act 1997, the Criminal Law Act 1997, the Freedom of Information Act 1997, the Child Trafficking and Pornography Act 1998, the Adoption Act 1998, the Criminal Justice Act 1999, the Illegal Immigrants (Trafficking) Act 2000, the Criminal Justice (Theft and Fraud Offences) Act 2001, the Competition Act 2002 and the Courts and Court Officers Act 2002.

That said, the Senator's point is interesting and there is need for dialogue between the Law Reform Commission and the Parliamentary Counsel's office and for reflection by the office on the recommendations of the Law Reform Commission regarding the use of the active voice. Given the statutory template and phrasing used in previous years I find it difficult to accept the Senator's amendment or to agree with the Law Reform Commission's recommendation in the absence of advice from the Parliamentary Counsel's office.

I am surprised that the Minister of State does not know what is happening in other Departments. My party tabled a similar amendment to the Containment of Nuclear Weapons Bill in the Dáil recently which the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Gallagher, accepted. Perhaps the Minister of State should discuss the matter with his colleague's Department.

I will certainly look at the matter on Report Stage in that case. The Department of Justice, Equality and Law Reform is responsible for the great bulk of legislation. The issue raised by the Senator should be examined and I will do so before Report Stage.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Title agreed to.
Bill reported without amendment.

An Leas-Chathaoirleach

When is it proposed to take Report Stage?

On Tuesday next. I thank the Minister of State. I am conscious of the reference in section 1 to the victim. However, if there is anything he can do in the interim period prior to Report Stage to reinforce the position of the victim, I believe that would be welcomed. The Minister of State has been very amenable in this regard.

Report Stage ordered for Tuesday, 21 October 2003.
Sitting suspended at 1.15 p.m. and resumed at 2 p.m.
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