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Seanad Éireann díospóireacht -
Wednesday, 1 Dec 2021

Vol. 281 No. 1

Criminal Justice (Amendment) Bill 2021: Report and Final Stages

I welcome the Minister of State at the Department of Justice, Deputy James Browne, to the House. I remind Senators that on Report Stage a Senator may speak only once, with the exception of the proposer of an amendment who may reply to the discussion on the amendment. In addition, each non-Government amendment must be seconded. The three experienced Members present already know this.

Amendments Nos. 1 to 8, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 4, between lines 9 and 10, to insert the following: “(b)by the deletion of subsections (4), (4A), (5) and (6),”.

I second the amendment.

Senator Conway has graciously seconded the amendment to allow discussion. That does not infer he supports it. The amendment is proposed and seconded. Senator Ruane wishes to speak.

I completely accept that. That is democracy, to allow the speaker to speak. I thank the Senator. Before explaining the purpose of each amendment I want to dispel any misconceptions surrounding these amendments. The purpose behind these amendments is to create a fairer, more just and rehabilitative focused justice system, not a let-off system. I could not make the last debate and I went back over some of the comments made. Some of Senator McDowell's comments confused me in regard to the reference to crack cocaine in Tallaght, which completely had no substance or basis. We are talking about people and addiction. The idea of a bad guy was referenced by one of the Senators. There is a very fine line, there is a cigarette paper between the idea of what a bad guy is, and what a victim is. Many people who perpetrate crime are also the victims of crime and of circumstance. We need to be able to show discretion in these situations. That is not to condone the acts of anybody, but usually there is a situation of duress, a situation of conditions or of intimidation in the background. There are so many factors that we will never know. That is why discretion is hugely important. These amendments are not written to enable the courts to go easier on crime, they are written to facilitate the rehabilitation of people who, by dint of their circumstances may have been more vulnerable to the crimes referenced within this Bill.

I will briefly walk through each amendment. Amendment No. 1 amends section 4 of the Bill. The purpose of adding this line is to remove presumptive minimum sentencing from the Firearms Act 1925. As both myself and Senator Black have said previously, adding this line will enable us to step towards a system which best supports a rehabilitative justice system. To do this it is crucial that we empower the Judiciary to sentence on a case-by-case basis. By accepting the amendment to section 4 of the Bill, we have the opportunity to support our Judiciary to make these circumstantial sentences and empower its members to make decisions which would best serve the offender in front of them, as well as society at large and public safety, rather than simply make decisions which the legislation allows them to make. By removing subsections (4), (4A), (5) and (6) from section 15 of the Firearms Act 1925 we offer society a more understanding justice system. By removing these subsections we would remove the legislation binding judges to a presumptive minimum sentence of ten years in prison and instead would insert an opportunity for judges to offer sentences which they believe will best rehabilitate the offender, not just in exceptional cases but in any case which the judge feels to be fit, based on the facts of the case.

I interrupt the Senator briefly, to be helpful. She should bear in mind that she can speak to the group now.

I thank the Leas-Chathaoirleach. I will, yes. What brings this Bill before us today is minimum sentencing in regard to the Firearms Act 1964, specifically in regard to minimum sentencing legislation and the Ellis v. Minister for Justice and Equality case. Without rehashing the details of the case, with which I am sure Members are all familiar, this amendment would ensure that should any judge deem it fitting to suspend a sentence due to the details presented before him or her, he or she would be allowed to do so. Currently the threshold set in the Firearms Act 1964 for when a judge may ignore the presumptive minimum sentence is only in exceptional cases.

In effect, we are asking members of our Judiciary to judge whether or not a case meets an abstract exceptional standard before they can use knowledge of the circumstances of the case to hand down an appropriate sentence. I have much experience in regard to drugs offences. I spent a lot of time in and out of the courts over the years, acting as an advocate and support to many people who have ended up in front of the Judiciary for drugs offences. How well people do or do not do in terms of deeming themselves an exceptional circumstance can rely heavily on many things, such as the type of supports within their family, the types of supports within their community, whether they have been engaged with sports clubs, what type of references they can build up and what type of psychosocial analysis they can have someone provide for the court case. Some people have the ability to show, or have a legal team that can show, why something is an exceptional case. However, somebody may be in a similar case or a worse case but may not have the means, wherewithal or know-how to lean on all those supports, or the legal team to be able to make that case to the courts.

Our amendments would remove this arbitrary exceptional standard and allow judges to tailor sentences to the circumstances of each individual case, rather than being bound to legislation. This is in order to have the best possible chance of creating a system which promotes the ideals of rehabilitation, not only in cases deemed exceptional, but in every case.

Amendment No. 6, which relates to section 6, seeks the removal of presumptive minimum sentences, but this time in regard to the Misuse of Drugs Act 1977. Convictions under the Misuse of Drugs Act 1977 are, by their nature, highly circumstantial. In order to hand down a sentence which respects these circumstances, a judge must be free from the binding of the presumptive minimum sentencing legislation laid out in sections 27(3C) and 27(3D). As I set out on previous stages, it is also because these convictions are so circumstantial that the Law Reform Commission recommended, in its 2013 mandatory sentences report, that subsections (3C) and (3D) be removed because they bind judges to restrictive minimum sentencing legislation. The report stressed that these require nuance and understanding in order to deliver a fair and correct sentence. They are cases which cannot be simply brushed aside as being convictions of "bad guys", as I said earlier. They often involve individuals whose involvement in the drugs trade comes about through circumstance and often from the same circumstance that creates situations of addiction. Poverty is often a driving force for many and, to be honest, I believe poverty should never be a crime. If people are forced into particular situations because of poverty, by extension, they are being criminalised through marginalisation because their circumstances have created a set of conditions in which they then break the law.

Amendment No. 7 would amend section 7 by removing subsections (9), (9A), (10) and (11) of the Firearms and Offensive Weapons Act 1990, which is the legislation under which Mr. Ellis was prosecuted. This amendment has the same purpose as the previous amendment and would remove the presumptive minimum sentence with regard to the 1990 Act. The amendment is made on the recommendation of the Irish Penal Reform Trust and the Law Reform Commission, both of which stressed that to accept the amendment would be a step towards a fairer justice system.

The final amendment is amendment No. 8. Of all of the amendments, this is the one I would really like to stress. The amendment seeks to amend section 8 by removing section 25 of the Criminal Justice Act 2007. The amendment is proposed with the aim of allowing those convicted under both the misuse of drugs and the firearms legislation access to the possibility of temporary release. There does not seem to be any reason, rationale or sense behind removing the ability for people to be able to access temporary release, not only in regard to individuals' ability to reintegrate and to prepare themselves for release and get to know their community again, but also in regard to the protection and well-being of their family. We are talking about a family member who has spent a considerable amount of time in the prison system just landing back at their door, sometimes with children in the house who, in many cases, have not had their father stay overnight with them in years. They are just planted back into the family and into the community, which does not serve the individual or the family, but it also does not serve public safety. We need to build the capacity of people to reintegrate safely, ensure they are connected with their services and ensure they have had an opportunity to engage in employment on a temporary release scheme, because this is what brings about long-term public safety.

I think we can all agree on this. Although I advocate very heavily for the individual who has committed crime, the ultimate goal of any of us is to ensure that people are safe, communities are safe and families are safe. It is in that vein that I implore the Minister of State to consider accepting amendment No. 8 to allow temporary release, to ensure people have the best opportunity possible, to ensure we protect the well-being of the family, where people are welcome in the individual home, and that we also protect the community because we have safely reintegrated individuals before their release.

I thank the Senator for presenting such an array of amendments so succinctly and comprehensively. I call Senator Conway.

As always, Senator Ruane presents a compelling case with her knowledge and expertise in this area. If the Minister of State can facilitate accepting even some of the amendments, it would be a good day’s work. That is what we are here for; we are here to improve legislation. I commend Senator Ruane for the effort she makes in that regard.

If Senator Wall does not wish to comment, I call the Minister of State to respond.

I thank Senator Ruane for putting forward very cogent amendments. I certainly heard her very strong arguments in regard to the purpose of the amendments. I will not be accepting the amendments and I will set out why. I note amendments Nos. 1 to 8, inclusive, have been taken together. Amendments Nos. 1 to 8, inclusive, provide for the further amendment of sentencing provisions in the Firearms Acts 1925 and 1964, the Misuse of Drugs Act 1977, the Firearms and Offensive Weapons Act 1990 and the Criminal Justice Act 2007. The effect of each of these amendments is to repeal various provisions for presumptive minimum sentences in the Act concerned. A presumptive minimum sentence directs a court to impose at a minimum a specified term of imprisonment unless the court is of the view that exceptional circumstances require a lower sentence.

In the case of amendments Nos. 1, 3 and 6, the presumptive minimum sentences concerned are for imprisonment of ten years for certain firearms or drug offences, while in the case of amendments Nos. 4, 5 and 7, the presumptive minimum sentences concerned are for imprisonment of five years for certain firearms offences. In the case of amendment No. 8, the presumptive minimum sentence is for three quarters of the maximum sentence provided by law for each of the serious offences listed in Schedule 2 to the Criminal Justice Act 2007. The amendments would not repeal all penalties for the various offences involved. While the presumptive minimum sentences would be repealed under these amendments, there would still be a maximum sentence in each section for the offence concerned, which would be subject to judicial discretion.

I have acknowledged in the course of Dáil and Seanad debates on this Bill the important role that is carried out by the Judiciary in the administration of justice. As has been noted previously, including by the Supreme Court in its judgment on the Ellis case, sentencing always involves consideration by the Judiciary of the gravity of the offence, the circumstances, the personal situation of the accused and any mitigating factors. I must note, however, that as I outlined in earlier debates in both Houses, this Bill is limited in scope and is designed to rectify the constitutional infirmity identified in the Ellis case by the repeal of all mandatory minimum sentences for second or subsequent offences. It does not set out to make further policy and legislative changes in the area of sentencing for criminal offences. The Bill is urgently needed in its current form in order to clarify the legal position with regard to the issues raised in the Ellis judgment, which was issued by the Supreme Court in 2019. The Bill is not intended to be a vehicle for a much broader set of legal changes in the area of sentencing. Existing penalties for presumptive minimum sentences are not affected by the Ellis judgment and remain valid.

It is also worth considering that there are likely to be a wide range views in this House and elsewhere as to whether such sentences are appropriate in the case of each particular offence concerned. A balanced view is needed which would also take into account the right of the Oireachtas to express its view on what certain sentencing thresholds should be, having regard to the seriousness of certain offences and, indeed, taking into account the perspective of victims of crime.

For these reasons, I regret I cannot agree to amendments Nos. 1 to 8. However, as noted by Senator Ruane on Second Stage, section 29 of the Judicial Council Act 2019 provides that the Minister shall commence a review of minimum sentences not later than two years after the commencement of the section. The section was legally commenced with effect from 16 December 2019 and, therefore, the review must be completed and a report must be provided to the Oireachtas within 12 months. I can confirm to the House that the plans are now in place for the legislative requirements to be met in full. In short, this review of all minimum sentences will start in the next couple of weeks and will, in accordance with legislation, be completed within a 12-month period.

I hear what the Minister of State is saying about what the Bill is intended to do. I am sure he can appreciate that, as someone who cares about this area, I try to find any possible way into the conversation and to amend the legislation.

I wonder whether the Minister of State could explain a little more the reason the section in question has to come under the suite of measures. Logically, if a person has a minimum sentence, he or she has to serve a minimum amount of time before any form of release. If the person is given temporary release, it would fall under the minimum sentence arrangement in respect of the amount of time before the release date for which he or she is allowed to integrate into the community. I think that is the logic but I am not really sure. Is there a rationale for the temporary release provision? If the Minister of State cannot answer now and has to come back to me, that will be completely acceptable. I want to understand why the temporary release provision has to be included in respect of meeting the requirements under the sentencing guidelines. To me, it really is a threat to public safety to release somebody who has spent considerable time in prison. It does not benefit any of us, nor does it benefit the justice system.

I understand there are different types of temporary release, so maybe it is a matter of breaking it down even further into the types that somebody might or should have access to if he or she falls under the guidelines. Perhaps as part of the review and reporting, the Minister of State, his officials and I can engage further on how we uncouple the temporary release aspect from the rest of the sentencing guidelines in respect of what I dealt with in amendments Nos. 1 to 8. I hope that makes sense.

I do not have the rationale to hand for the Senator but all the aspects of minimum sentencing could be examined when the review is being carried out.

Could the Minister of State engage with Senator Ruane because she requested that he and his officials engage with her and her office? That would be appropriate.

I thank Senator Conway. He has already spoken.

I felt it was in order to say that.

The Minister of State very much engages with everyone he deals with.

Amendment put and declared lost.

I move amendment No. 2:

In page 4, between lines 16 and 17, to insert the following:

"(ii) the deletion of subsections (4), (4A), (5) and (6),".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 3:

In page 4, between lines 21 and 22, to insert the following:

"(ii) the deletion of subsections (4), (4A), (5) and (6),".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 4:

In page 4, between lines 26 and 27, to insert the following:

"(ii) the deletion of subsections (4), (4A), (5) and (6),".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 5:

In page 4, between lines 32 and 33, to insert the following:

"(ii) the deletion of subsections (4), (4A), (5) and (6),".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 6:

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

"(b) by the deletion of subsections (3C) and (3D),".

I second the amendment.

Amendment put and declared lost.

I move amendment No.7:

In page 5, line 11, after "subsections" to insert "(9), (9A), (10), (11),".

I second the amendment.

Amendment put and declared lost

I move amendment No. 8:

In page 5, to delete lines 14 and 15 and substitute the following:

"8. The Criminal Justice Act 2007 is amended by the deletion of section 25.".

I second the amendment.

Amendment put:
The Seanad divided: Tá, 5; Níl, 25.

  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Wall, Mark.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Martin, Vincent P.
  • McGahon, John.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Lynn Ruane and Mark Wall; Níl, Senators Robbie Gallagher and Seán Kyne.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.
Amendment declared lost.
Bill received for final consideration.

When is it proposed to take next Stage?

Is that agreed? Agreed.

Question, "That the Bill do now pass", put and agreed to.
Sitting suspended at 1.45 p.m. and resumed at 2.34 p.m.
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