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.