It should be noted that the quorum for the meeting is made up by Opposition members.
Criminal Justice Bill 2004: Committee Stage (Resumed).
It will be noted. We owe them on that one.
My former committee had a quorum yesterday. Deputy Ned O'Keeffe informed me there were only two Opposition members present, one of whom was himself.
It is proposed we continue this meeting no later than 1 p.m. At 11.15 a.m. we must suspend and resume at 11.45 a.m. in committee room No. 3. At our last meeting we were discussing amendments No. 156 to 162, inclusive, which concern the drugs issue.
The purpose of amendment No. 158 is to extend the mandatory minimum sentencing policy provision in section 27 of the Misuse of Drugs Act 1977 as amended by the 1999 Act to the offence of importation where the market value of the drugs is €13,000 or more. To achieve this it is necessary to create a new offence relating to the importation of a controlled drug with a market value of €13,000 or more.
The current offence of importation of a controlled drug is provided for in regulations made under section 5 of the 1977 Act. That section provides that for the purpose of preventing the misuse of controlled drugs, the Minister for Health and Children can make regulations relating to, among other matters, the importation or exportation of controlled drugs. Accordingly, regulation No. 4 of the 1988 Misuse of Drugs Regulations provides that a person shall not import or export a controlled drug other than in accordance with the regulations. The relevant criminal sanction is set out in section 27(6) of the Misuse of Drugs Act and it provides that on conviction on indictment, one is liable to a fine of such an amount as the court considers appropriate or an imprisonment term not exceeding 14 years, or both fine and imprisonment.
In contrast, the corresponding penalty for possession of controlled drugs for unlawful sale or supply is a fine of such amount as the court considers appropriate and imprisonment for life. It therefore seems strange that we have a situation whereby importing such drugs carries a penalty of a maximum of 14 years — judges will work back from the maximum — whereas under section 15A the exact opposite situation obtains with regard to certain quantities of drugs for which the judge is supposed to operate between penalties of ten years' jail or life imprisonment, for a very similar offence.
The amendment proposes the insertion of a section 81 in the Bill, providing for the insertion of a new section, 15B, in the 1977 Act. I will not read out all the details. They are fairly straightforward. If members want me to deal with individual provisions I will be glad to do so.
Amendment No. 1 to amendment No. 156 is a technical amendment tabled by Fine Gael and we have discussed that issue. Amendments Nos. 2 and 3 to amendment No. 156 have been tabled by Deputy Ó Snodaigh and propose that another witness other than a garda or an officer of Customs and Excise should be called to give evidence as to the value of the drugs. However, this option is always open to a defendant and, in addition, a garda or Customs and Excise officer is available to be cross-examined. I do not think there is some kind of independent expert floating about who could be called on in such circumstances.
He should be arrested if he is.
Maybe not. He could be a voluntary worker in the field. I do not think this amendment is necessary.
Amendment No. 159 seeks to insert a new offence of supply of drugs into prisons and places of detention. This is in keeping with the programme for Government and the newly published drugs policy on keeping drugs out of prisons. The strategy calls for a co-ordinated, consistent national approach to eliminating the supply of drugs into prisons as well as ensuring appropriate treatment is available to prisoners to help them conquer their addiction.
In terms of eliminating supply, the strategy focuses on the smuggling of drugs into prisons. As pointed out in the strategy, prisons need to admit contractors and service providers, receive mail, food supplies and other deliveries, and prisoners must receive visits from families and friends. All these activities are potential routes for supply of drugs into prisons, as are concealment of drugs on the bodies of prisoners going to and from court appearances and sending in drugs over the walls by catapult and so on. Prisoners working as trustees under daily supervision have been coerced on occasion into bringing in contraband drugs. Trafficking by staff is a further method and although it is not quite possible to quantify, I notice that at least two members of staff have been prosecuted for that offence. These are matters difficult to quantify exactly.
The idea of the new strategy is to see an intensification of efforts in the prison system to eliminate availability of drugs within prisons. It will involve supply reduction, staff vigilance, physical searches and supervision of persons entering prison. It also involves changes to enhance visitor security, mandatory drug testing of prisoners and the introduction of drug detection dogs. It is necessary to make it clear that the importation of drugs into prisons is a serious offence. Just in case anyone thinks otherwise, bringing drugs into prison, regardless of quantity, is a serious offence in whatever circumstance, and unfortunately there is a great variety of potential circumstances. Relatives can be leaned on in this regard, and innocent prisoners with no drug habit can also be leaned on to participate.
I will not labour the point, because I think everyone on the committee will agree with me, but prison is a complete failure if it is drug-infested. I amad idem on that point with the Inspector of Prisons. If we do not have a coherent strategy to keep drugs out of prisons, prison is not merely a more dangerous place but is a failure in terms of rehabilitation.
The terms of the section are set out, as are the penalties. Regardless of the quantity of drugs, the penalty proposed is seven years, but if someone were to have a larger quantity, he or she would be liable under the ordinary law of the land to more serious penalties. I had considered introducing the ten-year penalty but that would have involved eliminating the possibility of these offences properly being dealt with in the District Court. It would mean that every attempt to get any drugs into any prison would have to be dealt with on indictment and would have to carry a ten-year sentence. Tempting though that was, I decided it might appear to be politically waving the big stick and being slightly unrealistic.
With regard to that, is there any complementary demand reduction programme, with treatment being approved and the demand not being there?
I do not know if that has happened. I should send to committee members the Keeping Drugs Out of Prisons policy document issued last week which makes it clear that simply trying to control the perimeters, so to speak, without doing anything on the inside is pointless. A new approach must be adopted in prisons in identifying those coming into prisons who are drug-dependent or have a drug habit.
New approaches to medical treatment must be adopted. Some prisons have adopted a tougher approach than others. Cork Prison, which architecturally and physically is not exactly a model, decided — reflecting to some extent the low prevalence of heroin in Cork city traditionally — that heroin addiction would be dealt with not by methadone treatment but by a programme of simply using valium-type reduction over a period, which is a much shorter drug elimination policy. Methadone is not given out in Cork Prison, or at any rate was not given out until recently, although I am not sure of the situation now. The real issue is whether we are going to engage in long-term methadone replacement or significant rehabilitation efforts designed to eliminate methadone usage too.
The third significant element is the issue of structured sentences, which are provided for in the Government amendments to the Bill. Part of our new suspended sentence package will deal with the question of judges suspending portions of prison sentences for drug addicts on condition that they participate in a rehabilitation and counter-addiction programme while in prison.
It would be helpful if we got more information on the background to these proposed changes. All of us would rally behind the idea of having drugs free prisons in the same way we would like to have a drugs free Ireland. It is the practicalities which are of concern. What is the current position in our prisons? I understand that on any given day there are approximately 3,000 people in custody in prisons scattered across 15 or 16 establishments. Can the Minister give a realistic assessment of how many of those 3,000 prisoners are on drugs? Is the figure increasing or decreasing? I assume attempts have been made to try to limit if not eliminate the problem. What attempts have been made and what new approach will be adopted that has not been tried before? This is the backdrop to having heavier sentences, of which I am in favour, although I want them to be part of a practical package for trying to achieve the objective of drugs-free prisons.
We are not alone in this. What is the experience internationally of attempts to deal with drugs in prisons? Has the Minister checked the situation in other countries and can we draw on their experience? Can we implement measures that have been successful elsewhere? Will the Minister give a thumbnail sketch of the position in this regard?
I should arrange for the delivery of the document because it is an elaborate one which deals with many of the issues to which the Deputy refers. Quantifying the level of illegal drugs use in prisons is by definition impossible because one cannot rely on the answers one is given. In 2001 the health research board found that those who continued to engage in illicit drug use in prison greatly reduced the quantity of drugs they used and the frequency with which they used them when compared with their drug use in the community, but that does not really help us. When I was on the Opposition benches, the then Minister, former Deputy Owen, advanced the view, with which I do not disagree, that there was major availability of drugs in Mountjoy Prison, for example. I cannot hazard a guess as to what proportion of prisoners are drug dependent or drug users. Even to use that phrase, one is talking about some people getting a joint, some shooting up heroin and others using other forms of drugs. To put them all into a broad category is not very helpful.
The impression I have is that there is a serious problem in Mountjoy and the past policy of the Prison Service, which was to encourage prisoners to enter drug free sections and units, has not worked. It is an element of a successful strategy but by itself it cannot work.
It works for the prisoners involved but it does not work for those who are not in the drug free unit. It is by definition a minority activity. I will come back to the committee with the figures on these matters.
While there was serious industrial relations unrest in the Prison Service, rolling out a mandatory drug testing regime was not a possibility. However, now that we have cleared the decks, so to speak, we are focusing all our resources on rehabilitation and improvements within the prison system. That is why I believe the climate is now right to introduce proper controls.
I do not accept the argument that has been made — I will not personalise it but the members will probably guess to whom I refer — namely, that because there are drugs outside prison, we can expect drugs in prison, any more than one would accept the same argument with regard to Garda stations, Dáil Éireann or anywhere else. That is not an appropriate approach. Nor do I accept the proposition that it is more important in the scale of priorities that every prisoner should be in a position to have close personal contact with visitors than that a prison should be kept drug free. If, in the last analysis, I must make a choice between those two aims, I would choose screened visiting rather than throwing our hands in the air and saying there is nothing we can do about drugs coming into our prisons.
The physical location of Mountjoy Prison creates a difficulty but it does not explain everything that is happening. There are now nets across the prison yards but drugs are put into ice cubes and shot up onto the nets so that they will melt and fall down, or put into oranges and fruit. The ingenuity of drug importation is quite interesting. Drugs can simply be catapulted over the wall of Mountjoy from adjoining roads. One of the advantages of Thornton Hall and Spike Island will be that those institutions will not have neighbouring thoroughfares from which these things can be done. However, I do not believe that the great majority of drugs enter Mountjoy by air. They enter in different ways such as those to which I referred.
It is time for a 100% commitment to eliminating drugs from prisons. The notion that drugs make for quieter institutions, which is never articulated but seems to exist, or that there is less trouble if not too much trouble is made about drugs is completely wrong. Prison officers in particular are at risk from this. If people are on drugs, they are a serious danger to prison officers because of syringes and needles as well as psychotic behaviour and the like.
There has been confused thinking in the past on this issue. I had to fend off a drugs task force initiative that I should introduce needles and sterilising fluid into prisons on a confidential basis so that prisoners who had a hard drugs problem could get clean needles and sterilising fluid to continue their habits. Frankly, I can see the logic of that. If one simply regards this as a medical phenomenon, one could arrive at the view that it is sensible to help keep prisoners clear of hepatitis or AIDS. However, if I have the equivalent of a tuck shop handing out sterilising fluid and needles in Mountjoy while I also say to prison officers that if they are not vigilant in keeping drugs out of the prison, they face the sack, what message would I send to prison officers, some of whom would be handing out materials to prisoners who are importing drugs while others busily waste their time searching visitors at the gates?
There is deep intellectual and moral confusion and a complete absence of relative values. The suggestion is made that it is more important that there be physical contact between a man, his partner and his baby than that a coherent strategy be taken to——
That is a distortion of the point.
Deputy McGrath will have plenty of opportunity to reply.
That is a distortion of the presentation. The Minister is against the humanitarian approach to prisons.
The Deputy should allow the Minister to continue.
I am not against it. I know exactly what I——
Will the Minister circulate a paper setting out exactly——
Can I finish my point? I wish to make it clear to Deputy Finian McGrath that I know exactly what I am talking about. In many prisons with a serious drug problem, glass screens are employed to prevent the handing over of drugs. The new policy states that it is for the governors to take personal responsibility. They must only allow unscreened visits when they are satisfied there is no risk of drug importation. That is a perfectly reasonable policy. However, we must be willing to invest in the infrastructure to prevent it from happening.
I am always concerned when any Minister presents legislation with such moral certainty. Moral certainty is not something about which members should be lectured.
I am not lecturing the Deputy.
I make this point because when I had responsibility for health, I made decisions regarding the provision of clean needles, albeit not in a confined situation such as a prison. However, if one provides needles, sterile packs, swabs and so on, it can always be argued that one is contributing to the drugs problem. During my tenure in office in the 1990s, the overriding issue was an epidemic of a lethal incurable disease, namely, AIDS. One was obliged to make value judgments and moral certainties were lovely. One could declare that one would certainly not be complicit in any way and that people who made such choices should be allowed to die. While some might find moral comfort in such a position, I found none.
It is not a simple matter to assert that we should keep our prisons drugs-free. The Minister has asserted that Government policy is that the governor is personally responsible for ensuring that no contact can risk the transmission of drugs. If I were a governor in receipt of such instructions from the Government, no unscreened visits would take place because one could never have such certainty. This constitutes a moral dilemma.
As a society, we deprive people of their liberty, which is a rather tough prospect for anyone to face. However, we do not also sentence families. Children and partners have the right to some form of contact.
While I have not yet read the full report of the Inspector of Prisons and Places of Detention, Mr. Justice Kinlen, and look forward to so doing, his observations are frightening. I welcome the Minister's notion that we must greatly improve the quality of prisons. That is very important. The Minister spoke about prison officers and their rights, and he is correct in this regard. Every day, we put them into the front line of dealing with incarcerated people.
In prison services throughout the world, there are sometimes control mechanisms. Successive Governments negotiated a regime with the Provisional IRA and others and while the Minister will probably not accept this, it was done. Over the decades, concessions were made to have an orderly prison regime in Portlaoise. I do not suggest that the Minister should negotiate with each prisoner who enters the system on how there will be peace. However, as a society, it poses a moral dilemma for us to tell people who face a lengthy prison term of seven to ten years or more that they will not have conjugal rights with their partners. Regimes with advanced social thinking, such as the Netherlands and some of the Scandinavian countries, address this matter in a different way.
There are always votes to be had from a "not an inch" policy. All members would gain from such a policy.
We would all suffer.
Yes. I know that it is easy to paint my party as being soft on crime. However, dealing with such issues is immensely complex. The creation of a drugs-free environment is an important objective. However, if it is seen as such a Holy Grail that individuals might be deprived forever or for their entire reproductive period from contact with their partners or spouses, such partners, who have never committed a crime, might be deprived for life from having children with those individuals. These are major issues and it is not a simple matter to make decisions on them. I want to hear that the Minister is thinking about these matters in a joined-up fashion.
We will not get into conjugal visits this time. At present, we are only dealing with drugs.
Can I say——
I would be happy to discuss conjugal visits with this committee——
At another time.
——on another occasion.
Without confused thinking, quality of life is critical to keeping prisons drugs-free.
Another major issue, which will involve hard choices and which must be addressed by the committee and the Minister is the demand from prison officers for a smoke-free prison. This will be a difficult decision because it pertains to keeping people passive and calm. That argument was made during the debate on the smoking regulations.
I have already made my choice in that regard. The prison officers argue that I have made the wrong choice.
That is the point. There may well be legal proceedings which could force the Minister's hand in this regard. He should contemplate that possibility.
However, I make these points in the context of the Minister's proposal, which I support, namely, a significant penalty for the importation of drugs into prisons. However, it must be accepted that its corollary is that there must be a humane regime within prisons. Clearly, the Inspector of Prisons and Places of Detention does not recognise the existence of such a regime at present. I know the Minister is attempting to improve this as far as physical conditions are concerned.
My only other question is in respect of amendment No. 159, which pertains to section 82. I refer to the provision in section 15C(5) of the right to search the person. Essentially, this subsection givescarte blanche for any prisoner to be searched at any time. Does this mean that a detailed body search can take place at any time? Again, this requires regulations to ensure that it does not amount to harassment of any individual.
I ask the Minister simply to address the question and to stay away from the more grand philosophical and moral arguments.
Exactly. To deal with——
The moral argument was used by the Minister in the first instance.
I fully accept that. Both Deputies have made excellent contributions in that regard.
Obviously, the power of search is necessary. However, it is subject to prison rules and the Department intends to publish new prison rules in the near future. Intimate searches will be dealt with by those rules and procedures. It is not the case that intimate searches are used to harass prisoners.
While I have tabled two amendments to amendment No. 159, I also wish to respond to the Minister's earlier comments. It is a pity this debate did not take place before this Bill came before the committee because the question as to how one creates a drugs-free environment in a prison constitutes a major bone of contention for those who represent people who have been or are in prison as well as for prison officers.
Obviously, everyone is committed to the elimination of drugs from prisons. However, we are also committed to eliminating them from society and if there is an abundance of drugs, especially heroin and cocaine, they will be available within the prison system. It is not known whether they are imported in the manner the Minister mentioned, namely, through ice cubes or whatever, through prison officers, governors, other members of staff, those who come and go through prisons, or through daily visitors to the prisons. All members can speculate and all have heard stories.
I will deal with my amendments first. I sought to delete subsections (4) and (1)(d) from section 15C. My reasoning was that a person in possession of drugs in the vicinity of a prison or detention or remand centre would be liable to a prison sentence longer than that passed if he or she was in possession of drugs on the street, although I may be mistaken. This is fine if the Minister succeeded, God forbid, in getting the new prison at Thornton Hall built and every prisoner was held there or on Spike Island. However, Mountjoy, Cork and Limerick prisons are located in built-up areas. What would be considered the vicinity of these prisons? Would it be the area within 100 or 200 yards or more of them? Anyone familiar with the geography of Mountjoy and Clover Hill Prisons knows that houses are located either right up against these prisons or close by. As I am not too familiar with the geography of Cork and Limerick Prisons, I cannot say if the same is true for them. The proximity of houses to Mountjoy and Clover Hill Prisons means that someone could be in possession of drugs in the vicinity of them without having any intention of supplying or delivering them to prisoners or others using drugs within the prison system. This is why I sought the deletion of these two sections.
The Minister's concept has been examined in many other prisons around the world. As far as I am aware, no other jurisdiction has succeeded in making all of their prisons drug free despite using screened visits. We should seek to make our prisons drug free but one of the problems facing our prison system is that not enough is being done to identify addicts on arrival in prison and put in place the necessary supports. If we take the route proposed by the Minister, every addict will be forced to undergo cold turkey once he or she arrives in prison. The prison system could not deal with the medical and psychological problems of addicts if they all underwent cold turkey in the morning. The prison population in Ireland reflects the population outside prisons which is hardest hit by the drug epidemic in this country and, therefore, contains heroin and cocaine abusers.
We must be realistic. If we take the route proposed by the Minister, he must put in place a considerable amount of resources to support addicts on arrival in prison and throughout their stay there. Even if prisons manage to stay drug free for a while, they need continued support. We cannot make our wider society drug free where addicts present themselves for treatment. In prison, they would have no choice if the Minister's proposal was adopted. The proposal, which would make prison governors responsible for deciding whether to introduce screened visits, needs a considerable amount of thought. As Deputy Howlin noted, prisoners are imprisoned to punish and I hope, rehabilitate them through education and other services, thereby, making them better citizens upon their release. In the past, families have been punished by screened visits and the movement of prisoners out of the locality, which makes it difficult for families to visit them. We must be conscious of the fact that prisoners' families have committed no crime and be careful not to punish them in any of the arrangements the Minister proposes to introduce.
There is a demand for clean needles in prisons on both medical and safety grounds. The need to ensure people's safety is one of the reasons why prison officers in other jurisdictions have sought the provision of clean needles in prisons with substantial numbers of heroin addicts. This will prevent prison officers getting pricked by used needles when they are searching cells and other rooms and being forced to undergo tests for HIV and hepatitis. It has been found in other jurisdictions that as a result of the provision of clean needles in prisons, the incidence of hepatitis has dropped and prison health services have been able to identify addicts more rapidly, offer the supports required to wean them off drugs and focus on rehabilitation. It is not simply a matter of making it easier for addicts to obtain their fix.
The Minister's arguments against the provision of clean needles in prisons were used against needle exchange programmes outside prisons. It was stated that such programmes encouraged addicts to use drugs. If an addict wishes to use drugs, he or she will do everything in his or her power to do so. He or she does not care whether the needle is rusty or has been used 30 times if a fix is needed. We must be responsible in our approach to this issue. While prisoners are under the care of the State, their medical well-being is in its hands. If as a result of our policies and our mismanagement of the prison system, we allow people to contract hepatitis C or AIDS, we might have a problem in the future. We must take an enlightened approach.
The Minister's amendment is, in the main, acceptable, but I would sound a note of caution in respect of the issue of vicinities.
On a very narrow question——
——which the Minister believes he must address.
The question of vicinities arises in amendment No. 159, at subsectioin (1), paragraph (d) and concerns a person in the possession of a controlled drug with intent to commit an offence in paragraphs (a), (b) and (c) while in the vicinity of a prison or school. It is not simply a matter of a person walking down the street outside Mountjoy Prison with drugs in his or her possession.
Amendment No. 159, at subsection (2), paragraph (b) states:
the court (or the jury, as the case may be), having regard to all the circumstances including the person's proximity to the prison, school or centre, as the case may be, the packaging (if any) of the controlled drug and the time of the day or night concerned, is satisfied that it is reasonable to assume that the controlled drug was not intended for his or her immediate personal use, he or she shall be presumed, until the court (or the jury, as the case may be) is satisfied to the contrary, to have been in possession of the controlled drug with intent to commit an act referred to in paragraph (a) or (b) or, as the case may be, (c) of subsection (1) of this section.
It is not simply a case of someone walking down a street outside Mountjoy Prison at 12 a.m., being stopped by a garda and being found to have a controlled drug in his or her wallet. All the circumstances must be taken into account and the possession of drugs must be with intent to commit an offence referred to in paragraphs (a), (b) and (c).
This would be fine bar amendment No. 159 at subsection (4), which states:
In any proceedings for an offence under subsection (1) of this section, it shall not be necessary for the prosecutor to prove that the controlled drug concerned was intended to come into the possession of any particular person in the prison, children detention school or remand centre, as the case may be.
No, that is a state of mind issue.
This is connected to it.
Does the Minister wish to continue discussing amendment No. 159 and the issue of drugs in prisons?
In respect of drugs in prisons, I am very concerned about the hard-line approach taken by the Minister. The fundamental question is whether the Minister opposes the idea of a humanitarian approach to drugs in prisons and prisoners' families. I would be very influenced by the views of John Lonergan, the governor of Mountjoy Prison, whom I have met many times. Mr. Lonergan's vision appears to differ from that of the Minister. Mr. Lonergan has a deeper analysis of the problem and has given hope to families of prisoners, particularly those directly involved in drugs. The main reason I oppose the mass punishments the Minister appears to propose is because such punishments would be very negative, would hurt families and children and would not work.
On the issue of the supply of drugs in prison, one must take into consideration the safety and security of prisoners and staff. The Inspector of Prisons has challenged the Minister's record by raising significant issues, which the Minister must address in detail. Whenever I visited Mountjoy Prison, it always struck me that families waiting to visit prisoners were usually badly dressed, undernourished, pale and gaunt. They looked like families under severe stress. This matter has not been referred to in this debate. Anyone who takes the Minister's approach when trying to assist these types of families will get nowhere.
Regarding the above matters, the Minister needs to tackle children's disadvantage at an early age. We have learned during the past week that 3,000 children are on psychiatric assessment waiting lists. If they do not get help during the next seven or eight years, they will be in Mountjoy Prison by the time they reach 15 or 16 years of age. I challenge the Minister and everyone else to do something about these children before they hurt themselves or other people. The winner takes all approach is too hardline. It will not work, as the matter is complex.
We must listen to people such as John Lonergan and those involved in drugs task forces. I have no problem with the Minister's statement on targeting gang leaders and violent criminals and I will strongly support any attempt to address the drug barons. I will also strongly support subsection (d) of the amendment.
Will the Minister conclude his comments on amendments Nos. 159 to 162, inclusive?
I have dealt with Deputy Ó Snodaigh's amendment. I will say more if he wants me to, but it is necessary to include this offence. Regarding the Labour Party's amendment No. 3 to the amendment, I am disposed to increase the period from seven years to ten years. If we do not, confused messages may be sent.
What is the current sentence for the possession of drugs? Is it a minimum of ten years for the possession of drugs to the value of more than €13,000?
It depends on the quantity of the drugs and the circumstances. There is possession for personal use and the intent to supply to another. These offences are addressed by sections 15, 15A, 15B if this Bill is passed and 15C.
What about supply to another?
I will check the current penalty, but ordinary section 15 sentences do not exceed the ten year limit. I am sorry — the sentence is life imprisonment.
Amendment No. 160 will insert a new section 83 in the Bill in respect of mandatory minimum sentences in section 27 of the 1977 Act for section 15A offences. Before addressing the amendments, I want to say something about the issue of mandatory sentences for drug offences. By enacting the 1999 Act, the Oireachtas gave a clear statement to the Judiciary that convictions for drug offences involving the sale or supply of substantial quantities of drugs should attract significant custodial sentences. The Oireachtas considered a quantity of drugs valued at €13,000 or more, irrespective of whether they were hard or soft drugs, to be a substantial quantity meriting a mandatory minimum sentence of not less than ten years imprisonment, which we discussed at yesterday's meeting.
Respecting the constitutional imperative that judges have discretion to consider not only the offence but also the circumstances of the individual offender, the Legislature provided that where the court is satisfied that there are what is termed "exceptional and specific circumstances" relating to the offence or the prisoner convicted of the offence that would make the imposition of the mandatory sentence in all of the circumstances unjust, the maximum minimum sentence need not be applied.
As I indicated during the recent Dáil debate on this Bill, the wishes of the Oireachtas have not been reflected in practice. For the first five years of its operation, the mandatory minimum sentence was applied in only 6% of convictions. However, its application has recently increased considerably and I understand that for the year 2004, after public controversy grew, the figure was approximately 21%.
Notwithstanding this improvement, I am proposing an addition of some other matters to act as a counterweight to the factors a court may take into account when determining a sentence. I am proposing that in contrast to mitigating factors such as co-operation and guilty pleas, the court may also take account of previous drug trafficking convictions and, importantly, whether the public interest in preventing drug trafficking would be served by the imposition of a sentence of not less than the ten year mandatory minimum. While sentencing is person-specific at one level, I propose to reintroduce the public interest to the balance and remind the courts they are supposed to take into account whether something is a repeat offence.
The reference to the public interest should ensure that, for example, the corrosive effects of drugs on our community are taken into account. These are the same irrespective of the circumstances of any offender. If someone in Deputy Finian McGrath's constituency walks into a major supplier with a hold-all bag containing cocaine, heroin or another drug to the value of €500,000, the effect on the community is not affected by whether the person carrying the drugs from Dublin Airport is a sad or hard case or ruthless criminal.
I strongly support a system of justice that takes into account the personal circumstances of the offender being dealt with by the court. It would not be a system of justice if it did not. Nonetheless, the court must say that even if the offender was effectively Mother Teresa, it does not matter because people will be shooting up with heroin on the stairs of a flat the next day. One's circumstances or reasons do not matter as much as the social outcomes. We are trying to rebalance the issue and make it less personal to the accused. If the court departs from the minimum mandatory sentence, a warning light should flash in the judge's mind, who should ask whether he or she is becoming too specific to the person and forgetting the effect of the offence on society.
A number of amendments are consequential to these amendments. Section 83(a) is a consequential amendment stemming from the new offence of the importation of drugs with a value of €13,000 or more. Section 83(b) inserts a new subsection 3AA in the 1977 Act, which provides a sentencing guideline to the court in respect of sanctions for offences under sections 15A and section 15B. Currently, sentencing options range from life under section 27(3)(a) to a mandatory ten year sentence under section 27(3)(b).
The new subsection 3AA relates to the possibility of a life sentence being imposed. I propose to provide a sentencing guideline to the court to the effect that when considering the maximum sentence to be imposed, it may have regard to whether the person has a previous conviction for a drug trafficking offence. The intention behind the proposal is to distinguish between the main players in the drugs trade and those who may become involved as drug mules or vulnerable persons who may be coerced into acting for drug traffickers.
Subsection 83(c) would amend subsection 27(3)(b) of the 1977 Act. It is a consequential amendment in respect of the importation offence. Subsection 83(d) proposes the substitution of a new subsection 3CC qualifying subsection 3B, which provides that the minimum sentence is to be ten years. Subsection 3C provides that this sentence shall not apply where there are exceptional circumstances that would make such a sentence unjust. In this regard, subsection 3C gives some indicators of factors that would permit the court to impose a lesser sentence, including guilty pleas and the level of co-operation given by the accused.
The purpose of the new subsection 3C is to provide a counterweight to exceptional and specific circumstances of the individual case which act as mitigating factors that the court may take into account when considering whether to apply the mandatory minimum of ten years or more for section 15A or section 15B offences. In considering whether a sentence of not less than ten years would be unjust, the court shall have regard to whether the person convicted has a previous drug trafficking offence and whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence. I am mindful of constitutional arrangements.
Section 83(e) is a consequential amendment to section 27(3I), which was inserted into the 1977 Act in 1999. Section 27(3I) will provide that section 13(2)(a) of the Criminal Procedure Act 1967 will not apply to offences under section 15B in addition to an offence under section 15A. The 1967 Act provides that if at any time the District Court ascertains that a person charged with an offence to which section 13 applies wishes to plead guilty and the court is satisfied that the defendant understands the nature of the offence and the facts alleged, the court can, with the consent of the prosecutor, deal with the offence summarily. These are not minor offences and cannot be dealt with in that way because the Constitution only allows for summary disposal of cases for minor offences.
The Fine Gael amendment proposes to remove the words "may in particular" and replaces them with the word "shall". I have some sympathy with Deputy Jim O'Keeffe's view because I canvassed that possibility with the Attorney General during the drafting process. However, I was advised to use the current version.
Deputy Ó Snodaigh proposes to add a new paragraph to section 27(3CC), which sets out the factors a court may take into account. Two new factors are being added and Deputy Ó Snodaigh wishes to add a range of additional factors. It is a varied and contradictory list including, on the one hand, expressions of remorse and family circumstances and, on the other, any violent behaviour. A judge must take into account all the evidence when imposing a sentence and I do not wish to create a menu of factors a court must take into account. Remorse is always considered by a judge as is the violent circumstances in which an offence was committed. I do not wish to create a series of guidelines that the Judiciary would regard as exhaustive, of no assistance and stating the obvious.
Amendment No. 161 inserts section 84 as a substitute for section 29(3) of the 1977 Act. The purpose of the substitution is to extend the means by which a doctor or pharmacist may rebut the presumption raised by section 15(2) and section 15A(2). The presumption is that a person is unlawfully in possession of drugs. In all cases referred to a person may rebut the presumption by showing that, at the time of the alleged offence, he or she was, by virtue of regulations made under section 4 of the 1977 Act, lawfully in possession of the controlled drug to which the proceedings relate. Regulations permitting possession of controlled drugs provide that the Minister for Health and Children may make regulations permitting certain persons or classes of persons to have possession of controlled drugs, normally doctors, vets, pharmacists and nurses. Offences under section 15B, importation of controlled drugs in excess of certain values, are not referred to by this.
Amendment No. 162 amends the definition of drug trafficking offences to comprehend the new importation offence. A previous conviction for a drug trafficking offence will be a factor considered by a court in imposing sentence.
The substance of Deputy Ó Snodaigh's amendment was well rehearsed during the discussion on firearms.
This is the same argument I made when we discussed mandatory sentences for firearms. The Minister does not want to be prescriptive in what judges must take into account. His amendment uses the word "may" rather than "shall". The former is not prescriptive whereas the latter insists judges take these factors into account in each case. My amendment suggests taking additional factors into account. I have retained "may" instead of "shall", thereby allowing judicial discretion. All circumstances must be taken into account, not just possession of drugs of a certain value and a previous conviction for drug trafficking.
The imposition of a ten year sentence for these conditions would be popular in the constituency I represent, given the destruction drugs have wrought. However, while laudable, sentencing will not solve the drug problem without addressing drug demand. Drug barons will traffic where demand exists and if the Minister is following this course, the Government must match his enthusiasm by reducing demand for drugs. Such measures may help communities destroyed by drugs to recover. These communities suffered an epidemic of heroin 20 years ago and are now in the grip of a cocaine epidemic. I do not seek to go easy on drug barons but I wish to ensure that a judge takes into account factors other than previous convictions. If one has a previous conviction, one has not learned a lesson and, in this case, I understand the imposition of a ten-year mandatory sentence. In the North, one had to serve the remainder of a previous sentence before beginning a new prison term. This encourages learning a lesson and not returning to drug trafficking. There are circumstances in which people may be caught up in drug trafficking and the judge should take this into account.
I support the moves for a tougher approach to illegal drugs and the changes being introduced. However, there is a point of difference between my approach and that of the Minister. I clearly outlined my concerns that minimum and mandatory sentences are neither minimum nor mandatory because, as the Minister mentioned, in 80% of cases the minimum mandatory sentence is not applied. Whatever case might be made for exceptional circumstances on a first offence, no such case should exist for a second offence. If the Legislature provides for a minimum and mandatory sentence, it should be both minimum and mandatory for a second offence.
The same thinking applies to my proposals on what the court should take into account when sentencing. I tabled two amendments on the Minister's approach that the court may have regard to whether the person had a previous conviction for a drug trafficking offence. That is not acceptable. I do not see why the Legislature cannot provide that the court shall take into account a previous conviction for a drug trafficking offence.
I examined this in the context of minimum mandatory sentencing and I do not believe there is a constitutional inhibition on the Legislature telling the courts what they must take into account. It does not entrench upon judicial discretion in any way. It states a judge must take this into account when imposing sentence. I see that as our job. If we want to provide for certain matters to be taken into account, we are entitled to state they must be taken into account.
With all due respect to the Minister's deference to the Attorney General, and on occasion, his deference to the Judiciary, we must do our job. I am not anti-Judiciary, the members of the Judiciary do a good job. However, it is up to us to lay down in law the factors which should be taken into account when the court makes a decision. It is ultimately up to the judge to make a decision. That is where my approach allows for judicial discretion. The change should be made from "may" to "shall".
This was considered previously regarding firearms.
In respect of Deputy Jim O'Keeffe's proposal, I reiterate that I will return to the Attorney General to see whether I can bridge the gap between us. It might be that the term "shall have due regard" to these issues would bridge the gap——
The phrase "shall in particular" sounds stronger than "due regard".
No, "shall in particular have due regard". I am trying to square a circle between two positions. It is not deference to the Attorney General. I must uphold the Constitution.
I accept that.
He is the legal adviser to the Government. I will be the person with egg all over my face if this is referred to the Supreme Court under Article 26. I will be the person who ignored his advice. Deputy O'Keeffe will not be outside the Four Courts explaining to the media that he got it wrong and I went along with it.
My understanding is that the Minister already checked this amendment with the Attorney General and he will not accept it. The advice I received is there is no constitutional inhibition.
I will go back to the Attorney General's office. It is a matter on which there are two views. I must take guidance from the Attorney General on this issue. There may be a way to close the gap between the two phraseologies. The Attorney General is a reasonable man and shares the same views as Deputy Jim O'Keeffe and me on the importance of getting this right. It must be right in two ways. It must be right in that it is effective as a sentencing policy, but it must also be right in that it upholds the Constitution and the independence of the Judiciary. It is important to get the combination of those two aspects correct. That is the Attorney General's function in such matters.
The Attorney General is examining the issue and it will arise again on Report Stage.
I move amendment No. 157:
In page 25, before section 24, but in Part 4, to insert the following new section:
"80.—(1) Section 15A of the Act of 1977 is amended by the insertion of the following subsection after subsection (3):
"(3A) In any proceedings for an offence under this section, it shall not be necessary for the prosecutor to prove that a person knew that at any time while the controlled drug or drugs concerned were in the person's possession that the market value of that drug or the aggregate of the market values of those drugs, as the case may be, amounted to €13,000 or more or that he or she was reckless in that regard.".
(2) This section shall not have effect in relation to proceedings for an offence under section 15A of the Act of 1977 instituted before the commencement of this section.".
I move amendment No. 1 to amendment No. 157:
To delete the inserted subsection (3A) and substitute the following:
"(3A) In any proceeding for an offence under this section, the prosecution shall prove that the accused person would reasonably have known that the controlled drug or drugs in their possession were worth €13,000 or more.".
I move amendment No. 158:
In page 25, before section 24, but in Part 4, to insert the following new section:
"81.—The Act of 1977 is amended by the insertion of the following section after section 15A:
"15B.—(1) A person shall be guilty of an offence where—
(a) the person imports one or more controlled drugs in contravention of regulations under section 5 of this Act, and
(b) at the time the drug or drugs are imported the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to €13,000 or more.
(2) If the court is satisfied that a member of the Garda Síochána or an officer of customs and excise has knowledge of the unlawful sale or supply of controlled drugs, that member or officer, as the case may be, shall be entitled in any proceedings for an offence under this section to be heard and to give evidence as to—
(a) the market value of the controlled drug concerned, or
(b) the aggregate of the market values of the controlled drugs concerned.
(3) In any proceedings for an offence under this section, it shall not be necessary for the prosecutor to prove that a person knew that at the time the person imported the controlled drug or drugs concerned that the market value of that drug or the aggregate of the market values of those drugs, as the case may be, amounted to €13,000 or more or that he or she was reckless in that regard.
(4) No proceedings may be instituted under this section except by or with the consent of the Director of Public Prosecutions.
(5) In this section ‘market value' and ‘an officer of customs and excise' have the meanings they have in section 15A of this Act.".".
I move amendment No. 3 to amendment No 158:
In the inserted section 15B, to delete subsection (3) and substitute the following new subsection:
"(3) In any proceeding for an offence under this section, the prosecution shall prove that the accused person would reasonably have known that the controlled drug or drugs in their possession were worth €13,000 or more.".
I move amendment No. 159:
In page 25, before section 24, but in Part 4, to insert the following new section:
"82.—The Act of 1977 is amended by the insertion of the following section after section 15B (inserted bysection 81 of this Act):
"15C.—(1) A person shall be guilty of an offence where—
(a) the person, other than in accordance with regulations made under section 4 of this Act, conveys a controlled drug into a prison, children detention school or remand centre or to a person in the prison, school or centre,
(b) the person, other than in accordance with regulations made under section 4 of this Act, places a controlled drug in any place inside or outside a prison, children detention school or remand centre with intent that it shall come into the possession of a person in the prison, school or centre,
(c) the person throws or projects a controlled drug into a prison, children detention school or remand centre, or
(d) the person, while in the vicinity of a prison, children detention school or remand centre, has in his or her possession a controlled drug with intent to commit an act referred to in paragraph (a), (b) or (c) of this subsection.
(2) A person may be guilty of an offence under subsection (1) of this section irrespective of the quantity of the controlled drug concerned.
(3) Subject to section 29(3) of this Act, in any proceedings for an offence under subsection (1)(d) of this section, where—
(a) it is proved that a person was in possession of a controlled drug in the vicinity of a prison, children detention school or remand centre, as the case may be, and
(b) the court (or the jury, as the case may be), having regard to all the circumstances including the person’s proximity to the prison, school or centre, as the case may be, the packaging (if any) of the controlled drug and the time of the day or night concerned, is satisfied that it is reasonable to assume that the controlled drug was not intended for his or her immediate personal use,
he or she shall be presumed, until the court (or the jury, as the case may be) is satisfied to the contrary, to have been in possession of the controlled drug with intent to commit an act referred to in paragraph (a) or (b) or, as the case may be, (c) of subsection (1) of this section.
(4) In any proceedings for an offence under subsection (1) of this section, it shall not be necessary for the prosecutor to prove that the controlled drug concerned was intended to come into the possession of any particular person in the prison, children detention school or remand centre, as the case may be.
(5) If a prison officer or an authorised member of the staff of a children detention school or remand centre reasonably suspects that a person has committed or is committing an offence under this section, he or she may, for the purpose of detecting the commission of such an offence, search the person at any time while he or she is in the prison, school or centre, as the case may be.
(6) A prison officer or an authorised member of the staff of a children detention school or remand centre may, for the purpose of performing his or her functions under subsection (5) of this section, have a controlled drug in his or her possession.
(7) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 7 years or both.
(8) In this section—
‘an authorised member of the staff'—
(a) in relation to a children detention school, means a member of the staff of the school who is authorised in writing for the purposes of this section by the Director (within the meaning of section 157 of the Children Act 2001) of the school, and
(b) in relation to a remand centre, means a member of the staff of the centre who is authorised in writing for the purposes of this section by the owners or, as the case may be, the managers of the centre;
‘children detention school' and ‘remand centre' have the meanings they have in section 3(1) of the Children Act 2001; ‘prison' means a place of custody administered by the Minister for Justice, Equality and Law Reform and includes Saint Patrick's Institution and a place of detention provided under section 2 of the Prisons Act 1970, and ‘prison officer', in relation to a prison, shall be construed accordingly.".".
I move amendment No. 1 to amendment No. 159:
In the inserted section 15C, subsection (1), to delete paragraph (d).
I move amendment No. 3 to amendment No. 159:
In the inserted section 15C(7)(b), to delete “7 years” and substitute “10 years”.
I believe the Minister will accept the amendment.
I move amendment No. 160
In page 25, before section 24, but in Part 4, to insert the following new section:
"83.—Section 27 of the Act of 1977 is amended—
(a) in subsection (3A)—
(i) by the substitution of "an offence under section 15A or 15B of this Act" for "an offence under section 15A", and
(ii) in paragraph (a), by the substitution of "subsections (3B) to (3CC) of this section" for "subsections (3B) and (3C) of this section",
(b) by the insertion of the following subsection after subsection (3A):
"(3AA) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.",
(c) in subsection (3B), by the substitution of “an offence under section 15A or 15B of this Act” for “an offence under section 15A”,
(d) by the insertion of the following subsection after subsection (3C):
"(3CC) The court, in considering for the purposes of subsection (3C) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence concerned was previously convicted in respect of a drug trafficking offence, and
(b) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.”,
(e) in subsection (3I), by the substitution of “an offence under section 15A or 15B of this Act” for “an offence under section 15A of this Act” and the substitution of “each of those offences” for “that offence”, and
(f) by the insertion of the following subsection after subsection (3J):
"(3K) In subsections (3AA) and (3CC) of this section ‘drug trafficking offence' has the meaning it has in section 3(1) of the Criminal Justice Act 1994.".".
I move amendment No. 1 to amendment No. 160:
In the inserted section 83(b), to delete “may, in particular” and substitute “shall”.
I move amendment No. 2 to amendment No. 160:
In the inserted section 83(d), to delete “may” and substitute “shall”.
- Howlin, Brendan.
- Neville, Dan.
- O’Keeffe, Jim.
- Ardagh, Seán.
- Brady, Martin.
- Dempsey, Tony.
- Hoctor, Márie.
- McDowell, Michael.
- Ó Fearghaíl, Seán.
- O’Snodaigh, Aengus.
- Power, Peter.
I move amendment No. 3 to amendment No. 160:
In the inserted subsection (3CC)(b), after “sentence” to insert the following:
(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.
I move amendment No. 161:
In page 25, before section 24, but in Part 4, to insert the following new section:
"84.—Section 29 of the Act of 1977 is amended by the substitution of the following subsection for subsection (3):
"(3) In any proceedings for an offence under section 15 or 15A, or subsection (1)(d) of section 15C, of this Act, a defendant may rebut the presumption raised by subsection (2) of the said section 15 or 15A or subsection (3) of the said section 15C, as the case may be, by showing that at the time of the alleged offence, he or she was by virtue of regulations made under section 4 of this Act lawfully in possession of the controlled drug or drugs to which the proceedings relate.".".
I move amendment No. 162:
In page 25, before section 24, but in Part 4, to insert the following new section:
"85.—Section 3(1) of the Criminal Justice Act 1994 is amended in the definition of "drug trafficking offence" by the insertion of the following paragraph after paragraph (bb):
"(bbb) an offence under section 15B (importation of controlled drugs in excess of certain value) of that Act,”.”.
Amendments Nos. 163 to 173, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 163:
In page 25, before section 24, but in Part 4, to insert the following new section:
OBLIGATIONS OF DRUG TRAFFICKING OFFENDERS TO NOTIFY CERTAIN INFORMATION
86.—In this Part, unless the context otherwise requires—
"court" means any court exercising criminal jurisdiction and includes a courtmartial;
"imprisonment" includes detention in Saint Patrick's Institution, and "prison" shall be construed accordingly;
"prescribed" means prescribed by regulations made by the Minister under this Act;
"relevant date" means the date of conviction for the drug trafficking offence concerned;
"remission from the sentence" means, in relation to the sentence imposed on a person, the remission which the person may earn from the sentence under the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct;
"sentence" includes a sentence of imprisonment and an order postponing sentence.".
This Part establishes a drug offenders register, in keeping with the commitment in the agreed programme for Government. The register is modelled to a significant extent on the sex offenders register and it will be of value to gardaí in keeping track of persons engaged in drug dealing, as well as providing valuable assistance and intelligence in the fight against drug crime.
The drug offenders register will apply to all who have been given a sentence of one or more years' imprisonment following conviction on indictment for drugs trafficking offences. The periods of registration run from one to 12 years, depending on the length of the sentence imposed and take effect on the date of release. In the case of a person under the age of 18, the periods of registration will be half of those applying in the case of adults.
As with the sex offenders register, the drug offenders register will be held by the Garda and there will be no public access to the information contained therein. Registration in the case of sex offenders is a civil consequence of a criminal conviction and of itself does not interfere with rights of movement or travel, provided the person concerned meets the registration requirements. Instances may arise in which convicted sex offenders are denied employment but that is a consequence of conviction rather than registration. Registration is intended to provide a means of tracking movement and whereabouts and does not prevent movement.
The sex offenders register has been examined in detail before the Court of Criminal Appeal in the Enright and Hayden cases and in the High Court in the NY case and has been upheld. These judgments were taken into account when the proposals were drafted for the establishment of a drug offenders register. Both Enright and Hayden involved cases in which the appellants objected to the retrospective application to them of the registration requirement, that is they were convicted before the sex offenders register entered force but were still serving sentences at the time.
The Enright and NY cases examined the issue of whether the requirement for registration was a punishment imposed by an authority other than a court or an addition to the punishment considered appropriate by the trial court. In Enright, the Court of Criminal Appeal held that registration was regulatory rather than punitive. A somewhat different view appears to have been taken by the High Court in the NY case, where the court seemed prepared to regard registration as part of the punishment but, distinguishing between primary and secondary punishment, felt registration was not a primary punishment.
The European Court of Human Rights considered the sex offenders register in Adamsonv. the United Kingdom. While the court accepted that the requirement to register was not a penalty in terms of Article 7 of the Convention, it was an interference with a person’s private life under Article 8. The question, therefore, was one of proportionality, that is whether the threat to society is of such a magnitude as to justify the interference with private life. The court held that it came within the proportionality rule.
The Irish Human Rights Commission, in its comment on the proposal for a drug offenders register, encapsulates the argument by stating, "the relevant question therefore is whether the interference pursues a legitimate aim and is necessary in a democratic society." I believe the registration of drug offenders can be justified as a proportionate but necessary response to a major and urgent social problem that affects the individuals unfortunate enough to become caught up as victims of drug abuse, poses a serious threat to social cohesion within communities, diverts resources from health and education budgets and employment creation and places additional demands on Garda time and resources. The register will assist in tracking serious offenders and, as a consequence, assist in the fight against this scourge.
Section 86 is a definition section which does not contain much of significance. Amendment No. 164 provides for a new section 87 to specify the offences giving rise to a registration requirement and provides that registration applies in the case of drug trafficking offences for persons sentenced to a period of at least one year's imprisonment. The term "drug trafficking offence" is also defined in the section.
Deputy Ó Snodaigh is proposing a new subsection which would require positive approval in the Dáil of all regulations under this section. Question of regulations arise in respect of three matters. Amendment No. 168 provides that the manner by which a person is required to register shall include the provision of details demanded by the gardaí. Section 91(10) provides for a standard form of written notification to be sent in response to the submission to the gardaí of details required for registration. Section 92(3) provides that regulations may specify the period during which a person who intends to seek a discharge from registration requirements is required to give advance notice of his or her intention to the local Garda superintendent. I do not regard these matters as serious enough to justify Dáil resolutions. They are clearly administrative in nature and have very few policy implications. It would be a waste of Oireachtas time to require debate on such issues when changes to the form are proposed. I remind members that a new section, section 3, has been agreed which provides that ministerial regulations will be laid before the Oireachtas on a general basis.
Amendment No. 165 inserts new section 88, defining the persons who are subject to the requirements. Subsection (1) provides that persons convicted on indictment of drug trafficking offences after the commencement of this Part are required to register. Subsection (2) provides that persons convicted on indictment before the commencement date are also subject to registration where the sentence has yet to be determined or where a sentence has been imposed and is being served or the person is on temporary release or the sentence is otherwise in force.
Amendment No. 166 imposes a new sentence dealing with the periods for which persons are required to be registered. Subsection (1) provides for the requirement to register in the case of persons who satisfy the requirements of the previous section. Subsection (2) provides that the registration requirement is subject to section 92, which provides that a person subject to a 12 year registration may after eight years apply to the court to have the requirement discharged. Subsection (3) sets out the registration period for persons over the age of 18. A registration period of 12 years is required in the case of a person sentenced to life imprisonment, seven years for persons sentenced to between ten years and life, five years for persons sentenced to between five and ten years, three years for persons sentenced to between one to five years and one year for persons who receive sentences for one year or more, including those given suspended sentences. Subsection (4) provides for registration periods for persons under the age of 18 of half the length for adults. Subsection (5) provides that the full registration period as set out is to apply, even where part of the sentence is suspended. Subsection (6) provides that, in cases where more than one sentence has been imposed for drug trafficking offences, the period of registration is to be calculated on the basis of the period of imprisonment, whether current, consecutive or partly consecutive. Subsection (7) provides that a person ceases to be subject to registration if the conviction is quashed. Subsection (8) provides that, where a sentence is varied on appeal, the period of registration can be also varied.
Amendment No. 167 inserts new section 90, requiring the person in charge of a place of detention to inform the prisoner before release that he or she is subject to registration upon release and to inform the Garda Commissioner ten days before the prisoner is due for release. Fine Gael also tabled an amendment concerning the Garda Síochána.
Amendment No. 168 inserts new section 91 to provide for a notification requirement. I draw particular attention to subsection (7) which deals with the calculation of the registration period and, in particular, its commencement. While the relevant period starts on the date of conviction, it will take effect on the date of release and the provisions in this legislation mirror those of section 10(7) of the Sex Offenders Act on that issue. The Fine Gael amendment is on the title of the Garda Síochána.
Amendment No. 169 inserts a new section 92, which is an obligation to comply with the requirements of the section. It mirrors section 11 of the Sex Offenders Act. This section deals with the case where a person who has received a life sentence seeks to have the registration period reduced or ended after a period of eight years has elapsed. The standard period of registration in such cases would be 12 years. There is a provision allowing the person to apply to the court for a relaxation. Deputy Jim O'Keeffe proposes to delete subsection (3), which requires the applicant to give notice to the local superintendent of his or her intention to apply for a discharge. That is reasonably important because the Garda must have prior notice of an application for discharge to be in a position to respond.
Subsection (4) ensures the Garda would have a right to be heard in any application. In amendment No. 5 to the main amendment, Deputy Jim O'Keeffe proposes, in subsection (9), that the hearing of an application may be held otherwise than in public. The text before us uses the word "shall", which is the correct approach. It may be recalled that generally there is no public access to the register. There is no need for general public access as the information on the register is intended for Garda purposes only to assist in the fight against Garda crime. Having court hearings in public session would defeat the general rule. The proposals in my amendment are identical to the position in section 11(9) of the Sex Offenders Act which deals with the registration of sex offenders.
Amendment No. 170 is to insert a new section 93, which is on offences in connection with notification requirements. On summary conviction it carries a fine of €3,000 or 12 months' imprisonment or both. Provisions are made for that. The Fine Gael amendment proposes to delete subsections (4) and (5). They must be read together. They provide that a garda not below the rank of sergeant may testify that the accused has not complied with the registration requirements and his or her evidence, unless the contrary is shown, shall be taken as evidence of the person's failure to comply.
That, however, is not the full picture. Subsection (5) ensures that the court must be satisfied that the garda is familiar with their systems for receipt and recording of the relevant information and that he or she has made proper inquiry whether the information was received. It is clearly not a matter of the garda giving pat evidence. The evidence must be based on familiarity with the system and on proper inquiries being made. This is identical to the provision in the sex offenders register, which was considered in these Houses. If we do not have a section such as this, gardaí would have to establish a negative by affirmative evidence. It is almost impossible for a garda to say from personal knowledge that a person never notified the Garda of his or her movement from one place to another. To provide affirmative evidence, one would have to ask every possible garda to whom the information might have been given.
Amendment No. 171 inserts a new section 94 which mirrors section 13 of the Sex Offenders Act and extends the registration requirement to cover persons convicted outside the State for what would be the equivalent of a drug trafficking offence in this jurisdiction or persons who are subject to a registration requirement in the state of sentencing but who now reside here. This is to ensure that when people move jurisdiction, there is an equivalence of control.
Amendment No. 172 inserts a new section 95, which provides for a certificate of a person's being subject to the requirements of this Part. It provides that the court must issue a certificate giving details of the sentence and specifies in subsection (5) the parties who are to receive the certificate. Subsection (1) provides for a certificate to be issued by the court following a person's conviction for a drug trafficking offence to indicate that the person has been convicted, the sentence, if any, imposed and the fact that the person is subject to a registration requirement. Subsection (2) provides that the certificate is to issue to the persons mentioned in subsection (5). Subsection (3) provides that where a sentence is quashed, a certificate will issue with the outcome of the appeal. Subsection (4) says that a certificate shall be regarded as proof of its contents and subsection (5) lists the persons who are to be given copies of the certificate. Subsection (6) provides that the mode of proving a conviction by subsection (4) shall be in addition to any other mode of approving a conviction and subsection (7) provides that rules of court may take account of the requirement to issue certificates under the section.
Amendment No. 173 is to insert a new section 96, which is proof of foreign convictions in certain cases. This section deals with the means by which an Irish court is to be satisfied by the evidence of a foreign conviction. This is relevant in cases where a person is being prosecuted for failing to give the required notification. Subsection (1) deals with cases where a person who has been convicted abroad is prosecuted here for failing to give notification of a foreign conviction. In such a case, a document that gives details of the foreign conviction shall be admissible as evidence and proof of its contents. Subsection (2) says that it must be signed or certified by a judge and authenticated on oath. Subsection (3) provides that the requirements of subsection (2) shall be satisfied without proof of signature, certification or authentication. On this occasion I agree that Deputy Jim O'Keeffe's two amendments improve the text and I propose to accept both of them.
Would Deputy Jim O'Keeffe like to respond?
We are getting there. I am glad the Minister finished as he did and saw the merit of some of my amendments. Generally I see much merit in his proposals and, in broad terms, I support them. The idea of a drug offenders register is a good one.
It would be helpful if we could get some outline of the experience of the only similar register we have, the sex offenders register. I understand there are more than 1,000 names on that register. I have questions on access to the register. There are clearly defined rules here. When a person comes to live in a community and is suspected of being involved in such crimes, the local community has no access to the register or it is unaware of the presence in their community of somebody who is on the register. We hear of concerns for children. Is the balance on access right? The only register we have is the sex offenders register. Similar provisions will apply to the proposed drug offenders register.
What sort of monitoring is done of the sex offenders register and what sort of monitoring will be done of the drug offenders register? Is there hands-on monitoring in which people are tracked or is the register resorted to only when a problem arises? How effective is the register in protecting the public? The monitoring of the register is important.
The free movement of people in the EU, especially between Ireland and the UK, has been raised with me. How effective are arrangements between the two countries on the exchange of information about offenders? What protections are available to the public from that point of view? In general I support the idea of a register. The proposals are largely modelled on the sex offenders register, which is the only thing that offers a perspective on how effective a drug offenders register might be. It would be helpful to hear the Minister's view on those issues.
It is a new departure and one could call for a register for any category of crime. The only one we have is the sex offenders register and that was the subject of much debate. It is interesting that it was tested in the European Court of Human Rights and found, on balance, to be acceptable. Its aim is to protect communities against preying sexual miscreants, particularly those who offend against children. I would be interested to hear what the Minister specifically has in mind for the use of this register. What specific value will it add to the fight against drugs?
I have questions on two specific issues. First, I am concerned at the low thresholds. Amendment No. 164 proposes that the provision for including a person on the list comes into effect for a drug trafficking offence carrying a sentence of more than one year. Amendment No. 166 proposes that, even where a suspended sentence of less than five years is handed down, the provision will apply. Where the lowest threshold applies, registration will be for one year, which might be of very limited use anyway. Would the European Court of Human Rights regard a situation where the courts imposed a suspended custodial sentence of 18 months as sufficiently grievous to justify the inclusion of a person on a register of offenders? I doubt that such a threshold would be strong enough to withstand a challenge in that regard.
The other issue was touched on by Deputy Jim O'Keeffe. What arrangements are there for adequate notification of the migration of very serious offenders into this jurisdiction? It would be perverse if somebody with a relatively minor drug trafficking offence was put on a register but his neighbour from a different jurisdiction, who might have served a prison sentence for serious criminal activity and migrated to Ireland because the temperature was too hot in his home jurisdiction, was not. Can the Minister say how such an individual will be dealt with?
Will the Minister respond to Deputy Jim O'Keeffe's comments?
Deputy Jim O'Keeffe asked me about the sex offenders register and how it worked in practice. His party colleague, Deputy Neville, tabled a parliamentary question to me recently and I informed him that, as of 5 May 2006, there were 907 persons subject to the requirements of the Sex Offenders Act 2001. The Deputy was not far out. That figure varies, depending on convictions, the expiry of time on older convictions, etc.
I presume it tends to go up rather than down.
It tends to go up as the number of prosecutions goes up. I was asked a few days ago about the number of sexual offences increasing dramatically. I knew from the last quarterly figures that most of them had gone down but the categorisation under non-headline offences of offences under the Sex Offenders Act had gone up. However, this was non-notification by people of their whereabouts and that went into the category of sexual offences.
Sometimes people in the media say the number of sexual offences has increased but this had nothing to do with sexual offences but related to people failing to notify the gardaí of their whereabouts. The number of people who had been prosecuted for that had increased.
One of my other points is that gardaí are following up on these matters.
They try to keep it under observation. Figures can be misleading. A few days ago I was asked by a journalist about the leap in the number of homicide offences. I thought the percentage quoted to me was high but it turned out that this was a broad category which also included threats to kill. Things shouted across the street were part of the figure. One must be careful with figures.
With regard to the Deputy's second point——
The Minister's comments about figures might apply to both of us.
I am not directing my comments at the Deputy. Other people, when they see a line in a Garda report to the effect that homicide offences are up, then tend to think that the incidence of murder and manslaughter must have increased by the same amount but they have not.
To reply to the other point, obviously people are not sitting in a command and control room looking at a screen all day. The way it operates is that a person is registered and local gardaí are informed of the registration if the person is in their area or they already know it. That person's movements are then subject to scrutiny. If they go abroad without notification, this allows the gardaí to intervene.
The local gardaí in the station will know that a person or persons residing in the area is on the register.
That is the idea.
Is it working out in practice?
I believe it is. There is little point having something up in Dublin if it is not notified to the gardaí down the line. How could somebody in Dublin know whether somebody in Dunmanway is or is not——
My concern arises from the horrific cases in the UK where people who were on the register were living in an area but the local constabulary were not aware of it. In the horrific Soham case, the perpetrator was employed as a caretaker in a school. I do not mind seeing the Minister embarrassed about various things but I have no wish to see anybody embarrassed by that type of case. Is there a process to ensure that such a situation would not arise here?
I do not wish to mislead the Deputy. I cannot speak with absolute certainty on this but I presume there is no point having a central register unless local gardaí are informed of it. If it were the case that local gardaí were not being informed of registrations relevant to either people from their locality who had committed offences and had moved out or people who had moved into their area, the purpose of the register is defeated. There is no point having a central database to which nobody with reason to consult it has access.
I agree. Is that being done?
I can only assume it is being done. I must credit the Garda with some intelligence.
There clearly have been serious breakdowns in the UK. I hope we have a system of monitoring here. I would be more reassured if the Minister checked it.
I will be happy to check it. We have at least one advantage in that we have one national police force. I presume that regional constabularies in the UK would have some form of liaison between them. On a broader issue, there is a memorandum of understanding between Ireland and the UK, including Northern Ireland, on information sharing. It was negotiated by my Department and the Home Office and, by coincidence, I am due to bring it to the Government next Tuesday.
What is the import of that?
It is a framework within which information will be shared.
The Minister should take a more hands-on, practical interest in this. If he cannot tell us what is happening here in practical terms, it is very important.
I am the Minister for Justice, Equality and Law Reform. I cannot micro-manage the Garda. If it is not operating on a common sense basis — I will check it out for the Deputy — it is not my responsibility. If the Deputy is concerned about it, he should invite gardaí to appear before the committee.
As the Minister is bringing forward proposals about the establishment of a register——
——it is reasonable to anticipate that the minimum we would like to know is whether the current register is operating well.
I presume it is.
I am not happy with that assumption.
I will check it but if the Deputy is unhappy with that assumption he should ask the committee to invite gardaí to appear before it so he can ask them how it is working. It is their operational responsibility. I am not a micro-manager of everything gardaí do. If they are leaving the register untouched in a bottom drawer in Dublin and not notifying local stations, that is an operational decision which I——
Does the Minister not even check?
How can I check every time? I do not spend my day checking such things.
Nora Owen was expected to check everything.
We are establishing a Garda inspectorate and I hope to bring a nomination to the Government on Tuesday for that job. However, it is not my job to operate as inspector of the police.
Would the Minister even raise it with the Commissioner? Would he not say: "I am introducing new legislation regarding a drug offenders' register and I anticipate that I will be asked questions so is the current register operating effectively and properly? Are there problems with it? Do you need more resources?"
The very good relationship I have with the Commissioner operates on the basis that he tells me what problems he encounters. I do not go through a checklist every day with him, asking if he has problems with X, Y and Z. We do not operate that way.
I accept that. However, the Minister is introducing serious amendments about establishing a register——
I have the information the Deputy sought.
With respect, the Minister has presumptions. It is not proper to operate on the basis of presumptions about the existing register.
If the Deputy seeks specific information, he can ask for it in a parliamentary question. He has asked me now so I will get it for him.
I am asking.
With regard to other countries, there is work at an EU justice and home affairs level relating to other EU countries to ensure there is full co-ordination.
How many other EU member states currently have a register?
I cannot answer that question.
Do any of them have one?
Yes, a considerable number. Many EU countries have a different approach from us. In many EU countries it is obligatory to register one's whereabouts with the local police and to bring one's identity card if one goes to live in a place. Everybody is on the register in those countries. Our system is much more relaxed.
I will first deal with the amendment to amendment No. 164. This is a standard provision. It relates to ensuring that regulations arising——
The Deputy means a standard amendment rather than a standard provision.
It should be a standard provision. It seeks to ensure that regulations should require the approval of both Houses of the Oireachtas. Perhaps there would not have been such a furore about the Garda reserve if the Minister had not taken the route of ministerial regulations. The amendment seeks to enhance democracy. When directives are made by the EU they come before the House and are usually referred to a committee, without debate. The committee deals with them. In Opposition we often criticise the fact that directives go from the Dáil without debate. However, I do not think it is beyond committees to deal with regulations. If it required only the change of a form, then we could rubber-stamp it and send it back. If it were a major regulation involving our justice system, which some of the ministerial regulations are, then we should debate it — not after the fact as the Minister has suggested. I have a number of amendments on this; I am not going to go through this every time they come up.
I am not convinced on the issue of the register for some of the reasons stated by Deputy Jim O'Keeffe. We do not have the information to gauge the effectiveness of the register of sexual offenders, for example. How will registers aid the Garda in preventing and investigating drugs crimes? The Garda will already have much of this material on file since it refers to people who have been convicted. The Garda does not delete files and start afresh after a conviction. There is an internal Garda bulletin carrying photographs of suspects. If a criminal is changing address, the gardaí in the previous district will inform those in the new one, I presume.
That is the idea behind the PULSE system. A garda in Caherciveen should have access to the same material as his colleagues in Dublin.
That is the theory.
That is the theory and it would be the same with this. The register would still depend on a garda inputting the data and keeping track of it. A loophole here is that an offender must appear at a Garda station or write to notify the force that he or she is moving. Anybody can write on behalf of someone else. If this register is to go ahead, then the offender should be compelled to appear in person at the station to inform the Garda of his or her intention to change address. The Garda should only allow notification in writing if the person has left the country.
Another problem is that it is an offence not to notify the Garda of a change of address and the onus is on the offender to prove that they notified the Garda. Despite this, no duplicate copy is to be issued by the Garda verifying receipt of notification. In the case of bail books being signed in a Garda station, there are cases where these records have not been properly kept. If it is to be an offence for a person on the register not to notify the Garda of his or her movement, then he or she must have a way of proving that he or she did so.
The Minister said that the sex offenders register could be applied retrospectively. I believe the register of drug dealers should begin only with offenders convicted subsequent to its initiation. This is not to defend previously convicted offenders but to ensure the use of the register is not delayed by court cases involving people trying to prevent its operation.
I do not believe the case for a register has been proven. How will it improve Garda operations? Can the Minister indicate other jurisdictions that operate such a system in order that we can consider it between now and Report Stage and before we oppose something that might be useful and has proven to be in other jurisdictions? Even the sex offenders register has its flaws. It does not prevent crimes of a sexual nature. People may become complacent once a drugs offenders register is in place, presuming they are safe because certain people are not on it. Most sex offenders are people already known to the victim and are not repeat offenders. Most major drug dealers have not served prison sentences for drug dealing and so are unlikely to be on a register. In such a scenario, one would find oneself depending on the regular Garda files and intelligence. These files should be accessible to gardaí who are trying to check on someone who may be an offender.
Those are my concerns and I hope the Minister can provide more details before the Report Stage. It is unfortunate that we did not have something prior to this Stage as this is usually the better forum in which to tease out problems with such legislation.
The latest Garda report for non-headline offences stated that there was an increase of 350% in Sex Offender Act cases. This caused a member of the press to state that sexual offences were up by 350%. In fact, in the previous year there were four instances of people not living up to their obligations under the register and this came to the attention of the Garda. In 2005, 18 people did likewise, so this was deemed a 350% increase in sex offender cases.
That is correct.
Were the missing firearms found? They were not included in that report.
I will have to come back to the Deputy about the missing firearms; I do not know where they have gone. It has been suggested here that this proposal may have limited effectiveness. However, the question is whether we want to impose on people convicted of drug trafficking offences the obligation for a period after their conviction to notify the Garda of their whereabouts. It cannot do any harm, at best, and it could do a lot of damage.
I think the Minister meant "do a lot of good", not "do a lot of damage".
Yes, it could help avoid a lot of damage. I have never accepted the idea of public access to a sex offenders register and I do not think it would work with this register either. It is not a good idea to engage in a witch hunt. The presumption in our system, subject to a good modicum of common sense, is that people will try to uphold the law once they are released from prison. The notion that a target list would be provided for people who have nothing else to put in their newspaper columns and want to run a story is unacceptable.
I had experience on one occasion of defending an individual on charges of sex abuse whose whereabouts became known to a newspaper. A frenzy of activity took place around the person's house which served no useful purpose because it drove the person further underground. Whatever value it has, it does not assist the Garda. We are all aware of the case of the poor old paediatrician who had a mob outside her house because somebody confused the term "paediatrician" with "paedophile".
With regard to the making of regulations, I agree with Deputy Ó Snodaigh that it would be useful if people were given a receipt for the information or evidence in a case. That is a good idea and I will take that up with the Garda because it makes common sense. If somebody is notified about something, an acknowledgement of that fact should be provided.
A rigid table of registration periods for offences is provided varying by severity of the sentence imposed. However, I have been struck by two issues. Generally, it cannot be wrong to allow a court general discretion to increase the registration period in any case if that is considered reasonable. I will consider this before Report Stage.
Second, if a judge gave somebody a lenient sentence, he or she must reduce the notification period. He or she could not be lenient and keep the person out of jail while enabling the Garda to keep a close eye on him or her afterwards. I do not see the logic of reducing the capacity of a court to vary that combination of sentence and registration in a way that makes common sense. If I were a judge and somebody came to me with a heart rending case which resulted in me imposing a light or suspended sentence and I was told one of the consequences of this was that I must reduce the registration period, it would put a question mark in my mind whether the offender could disappear into the woodwork. I do not see the logic of tying judges rigidly to that system. Listening to the debate earlier, it struck me that it is slightly illogical to say to a judge that the more lenient he or she is with prison, the less intelligence the Garda will be entitled to gather regarding the offender going forward. There is no logical connection between those two issues and it might have the opposite effect.
The Minister addressed the second issue I raised about extraterritorial offences. A memorandum of understanding with the UK will come into force shortly and the Minister might report progress to us on an initiative in this regard at EU level in due course. However, the issue I am concerned about is that serious offenders who migrate to Ireland are not required to register here whereas somebody who commits a much lesser offence within this jurisdiction will have to register. A clear view on this is needed.
The initial threshold of a one-year sentence is too low and may well fall foul of the——
When the Deputy raised this earlier, I thought it a little absurd——
Instead of addressing the grounds to suspend a sentence, monitoring could be imposed, which would be good.
That is what I said. With regard to EU justice and home affairs matters, there is a proposal that serious and serial sex offenders should be notified to member states if they move. For example, if somebody moves from the Czech Republic to Ireland and notifies the police in his home country that he is moving under the equivalent registration process, it would be difficult to justify that he or she should not be under an immediate obligation to register here. Sometimes highly ambitious projects relating to European law are put in place at Justice and Home Affairs Council meetings, but that is a simple proposal.
I made a proposal in the past regarding criminal lunatics. Under the European arrest warrant there is a procedure whereby a person who commits an offence can be sent back to his or her native country to serve a sentence but no procedure is in place to bring back somebody who escapes from a mental hospital because he or she is a mental patient. Unless there is a public safety ground about which we can notify a foreign state, we do not have a system to return such individuals. Likewise, if a person travelled to Ireland having escaped from a French psychiatric institution, we do not have an automatic right to arrest him or her and return him or her to France except on strong public order grounds. There is no common basis for that. These practical issues can be addressed between European states. The Commission discussed the removal of the unanimity rule recently in the area of justice and home affairs. Talk about learning to run before one can walk.
I move amendment No. 164:
In page 25, before section 24, but in Part 4, to insert the following new section:
"87.—In this Part "drug trafficking offence" has the meaning it has in section 3(1) (as amended by section 85) of the Criminal Justice Act 1994 but does not include such an offence unless the person convicted of it has, in respect thereof, been sentenced to imprisonment for a period of more than one year.”.
I move amendment No. 1 to amendment No. 164:
In section 87, after "87.—" to insert the following:
"(1) Any Ministerial regulations arising from this Part shall require the approval of both Houses of the Oireachtas.
I move amendment No. 165:
In page 25, before section 24, but in Part 4, to insert the following new section:
"88.—(1) Without prejudice tosubsection (2) and section 94, a person is subject to the requirements of this Part if he or she is convicted on indictment of a drug trafficking offence after the commencement of this Part.
(2) A person is also subject to the requirements of this Part if he or she has been convicted on indictment of a drug trafficking offence before the commencement of this Part and, at that commencement, either—
(a) the sentence to be imposed on the person in respect of the offence has yet to be determined, or
(b) a sentence has been imposed on the person in respect of the offence and—
(i) the person is serving the sentence in prison,
(ii) the person is temporarily released under section 2 of the Criminal Justice Act 1960, or
(iii) the sentence is otherwise still in force or current.".
I move amendment No. 166:
In page 25, before section 24, but in Part 4, to insert the following new section:
"89.—(1) A person who, by reason ofsection 88, is subject to the requirements of this Part shall be so subject for the period referred to in subsection (3) or, in the case of a person referred to in section 88(2), so much (if any) of that period as falls after the commencement of this Part.
(2)Subsection (1) is subject to section 92.
(3) The period mentioned insubsection (1) is the period, beginning with the relevant date, of—
(a) 12 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life,
(b) 7 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 10 years but not one of imprisonment for life,
(c) 5 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 5 years but not more than 10 years,
(d) 3 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than one year but not more than 5 years,
(e) one year if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for any term, the operation of the whole of which is suspended (but, if the operation of that term is revived by the court, whichever of the preceding paragraphs is appropriate shall apply instead of this paragraph).
(a) a sentence is imposed on a person in respect of a drug trafficking offence,
(b) at the time of sentencing the person is aged under 18 years, subsection (3) shall have effect in relation to that person as if for the references to 12 years, 7 years, 5 years, 3 years and one year in that subsection there were substituted references to 6 years, 3½ years, 2½ years, 1½ years and 6 months, respectively.
(5) If a sentence of imprisonment for any term is imposed on the person referred to insubsection (1) in respect of the offence concerned and the operation of a part of that term is suspended—
(a) the part of that term the operation of which is not suspended shall be regarded as the term of imprisonment imposed on that person for the purposes of subsection (3) (but, if the operation of the first-mentioned part of that term is revived by the court, whichever of paragraphs (a), (b), (c) and (d) of subsection (3) is appropriate shall apply without regard to this paragraph),
(b) paragraph (a) extends to a case in which that suspension is provided for subsequent to the imposition of the sentence.
(6) If a person is or has been sentenced in respect of 2 or more drug trafficking offences and the sentences imposed are consecutive or partly concurrent thensubsection (3) shall have effect as if—
(a) in the case of consecutive sentences, the sentence imposed in respect of each of the offences were or had been a sentence equal to the aggregate of those sentences,
(b) in the case of partly concurrent sentences, the sentence imposed in respect of each of the offences were or had been a sentence equal to the aggregate of those sentences after making such deduction as is necessary to ensure that no period of time is counted more than once.
(7) Without prejudice tosection 92, a person shall cease to be subject to the requirements of this Part if the conviction in respect of the offence concerned is quashed on appeal or otherwise.
(8) A reference in this section to a sentence imposed on a person shall, if the sentence is varied on appeal, be construed as a reference to the sentence as so varied and, accordingly, the period for which a person is subject to the requirements of this Part, by reason of this section, shall stand reduced or increased, as the case may be, in the event that such a variation is made which results in the sentence falling under a different paragraph ofsubsection (3) than it did before the variation.”.
Will the Minister come back with an amendment to this?
I move amendment No. 167:
In page 25, before section 24, but in Part 4, to insert the following new section:
"90.—The person for the time being in charge of the place where a person subject to the requirements of this Part is ordered to be imprisoned in respect of an offence (whether or not the offence that gave rise to the person's being subject to those requirements) shall notify in writing—
(a) before the date on which the sentence of imprisonment imposed on the person in respect of the first-mentioned offence expires or, as the case may be, the person’s remission from the sentence begins (“the date of release”), the person that he or she is subject to the requirements of this Part, and
(b) at least 10 days before the date of release, the Commissioner of the Garda Síochána of the fact that that expiry or remission will occur in relation to the person.”.
I move amendment No. 168:
In page 25, before section 24, but in Part 4, to insert the following new section:
"91.—(1) A person who is subject to the requirements of this Part shall, before the end of the period of 7 days beginning with the relevant date, or, if that date is prior to the commencement of this Part, that commencement, notify to the Garda Síochána—
(a) his or her name and, where he or she also uses one or more other names, each of those names, and
(b) his or her home address.
(2) A person who is subject to those requirements shall also, before the end of the period of 7 days beginning with—
(a) the person’s using a name which is not the name, or one of the names, last previously notified by him or her to the Garda Síochána under this section,
(b) any change of his or her home address,
(c) the person’s having resided or stayed, for a qualifying period, at any place in the State, the address of which has not been notified to the Garda Síochána under this section as being his or her current home address, or
(d) the person’s returning to an address in the State, having, immediately prior to such return, been outside the State for a continuous period of 7 days or more, notify that name, the effect of that change, the address of that place or, as the case may be, the fact of that return to the Garda Síochána.
(3) If a person who is subject to the requirements of this Part intends to leave the State for a continuous period of 7 days or more he or she shall notify the Garda Síochána of that intention and, if known, the address of the place outside the State he or she intends to reside or stay at.
(4) If a person who is subject to the requirements of this Part is outside the State for a continuous period of 7 days or more and did not intend, on leaving the State, to be outside the State for such a continuous period, the person shall, subject tosubsection (5), notify the Garda Síochána, before the expiry of a further period of 7 days, reckoned from the 7th day that he or she is so outside the State, of that fact and the address of the place at which he or she is residing or staying outside the State.
(5)Subsection (4) shall not apply if the person concerned has returned to the State before the expiry of the further period of 7 days mentioned in that subsection.
(6) A notification given to the Garda Síochána by any person shall not be regarded as complying withsubsection (1), (2), (3) or (4) unless it also states the person’s—
(a) date of birth,
(b) name on the relevant date and, where he or she used one or more other names on that date, each of those names, and
(c) home address on the relevant date.
(7) For the purpose of determining any period for the purposes ofsubsection (1), (2), (3) or (4), there shall be disregarded any time when the person concerned is—
(a) remanded in custody,
(b) serving a sentence in prison, or
(c) temporarily released under section 2 of the Criminal Justice Act 1960.
(8) A person may give a notification under this section—
(a) by attending in person at any Garda Síochána station which is a divisional or district headquarters and notifying orally a member of the Garda Síochána at the station of the matters concerned,
(b) by sending, by post, a written notification of the matters concerned to any Garda Síochána station which is such a headquarters,
(c) by such other means as may be prescribed.
(9) The onus of proof of the sending by post of such a notification shall, in any proceedings for an offence undersection 93(1)(a), lie on the defendant.
(10) A notification under this section shall be acknowledged in writing and that acknowledgement shall be in such form as may be prescribed.
(11) In this section—
"home address", in relation to any person, means the address of his or her sole or main residence or, if he or she has no such residence, his or her most usual place of abode or, if he or she has no such abode, the place which he or she regularly visits;
"qualifying period" means—
(a) a period of 7 days, or
(b) 2 or more periods, in any period of 12 months, which (taken together) amount to 7 days.”.
I move amendment No. 169:
In page 25, before section 24, but in Part 4, to insert the following new section:
"92.—(1) A person who, by reason ofsections 88 and 89, is subject to the requirements of this Part for a period of 12 years or 6 years (in the case of a person to whom section 89(4) applies) may apply to the court for an order discharging the person from the obligation to comply with those requirements on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them.
(2) An application under this section shall not be made before the expiration of the period of 8 years, or 4 years in the case of a person to whomsection 89(4) applies, from the date of the applicant’s release from prison.
(3) The applicant shall, not later than the beginning of such period before the making of the application as may be prescribed, notify the superintendent of the Garda Síochána of the district in which he or she ordinarily resides or has his or her most usual place of abode of his or her intention to make an application under this section.
(4) That superintendent or any other member of the Garda Síochána shall be entitled to appear and be heard at the hearing of that application.
(5) On the hearing of an application under this section, the court shall, if it considers that it is appropriate to do so in all the circumstances of the case, make an order discharging the applicant from the obligation to comply with the requirements of this Part.
(6) In considering an application under this section, the court may have regard to any matter that appears to it to be relevant and may, in particular, have regard to the character of the applicant, his or her conduct after conviction for the offence concerned and the offence concerned.
(7) If the court makes an order discharging the applicant from the obligation to comply with the requirements of this Part, the court shall cause the Garda Síochána to be notified, in writing, of that discharge.
(8) The jurisdiction of the court in respect of an application under this section may be exercised by the judge of the circuit where the applicant ordinarily resides or has his or her most usual place of abode.
(9) Proceedings under this section shall be heard otherwise than in public.
(10) In this section—
"applicant" means the person referred to insubsection (1);
"court" means the Circuit Court;
"date of the applicant's release from prison" means the date on which the applicant's sentence of imprisonment for the purposes ofsection 89(3) expires or, as the case may be, his or her remission from the sentence begins.”.
I move amendment No. 4 to amendment No. 169:
In subsection (7), to delete "the Garda Síochána" and substitute "an Garda Síochána".
Has the person a right to go to court without informing anybody in this jurisdiction?
I do not think that necessarily follows. In the majority of cases it is a precondition of invoking a court's jurisdiction to notify an affected party of one's intention. For example, if the Deputy were sued tomorrow for driving his car negligently, a court hearing could not take place without putting him on notice. Since this is a variation procedure, someone must be present on the day one goes into the court who has been put in the position to think about the matter and come up with a contrary viewpoint. The idea that one could go into a court and the judge could annul an order without notifying the Garda, regardless of the public interest, would not be a good idea.
I move amendment No. 170:
In page 25, before section 24, but in Part 4, to insert the following new section:
"93.—(1) A person who—
(a) fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4) of section 91, or
(b) notifies to the Garda Síochána, in purported compliance with that subsection (1), (2), (3) or (4), any information which he or she knows to be false or misleading in any respect,
shall be guilty of an offence.
(2) A person is guilty of an offence undersubsection (1)(a) on the day on which he or she first fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4), as the case may be, of section 91 and continues to be guilty of it throughout any period during which the failure continues; but a person shall not be prosecuted under that provision more than once in respect of the same failure.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.
(4) In proceedings for an offence undersubsection (1)(a) a statement on oath by a member of the Garda Síochána referred to in subsection (5) that no notification of the matters concerned was given by the defendant to the Garda Síochána by any of the means referred to in section 91(8) shall, until the contrary is shown, be evidence that no such notification was given by the defendant.
(5) The member of the Garda Síochána referred to insubsection (4) is a member not below the rank of sergeant who, from his or her evidence to the court, the court is satisfied-
(a) is familiar with the systems operated by the Garda Síochána for recording the fact that particular information has been received by them, and
(b) has made all proper inquiries in ascertaining whether a notification by the defendant of the matters concerned was received by the Garda Síochána.”.
I move amendment No. 171:
In page 25, before section 24, but in Part 4, to insert the following new section:
(a) a person has been convicted, in a place other than the State, of an offence,
(b) the act constituting the offence concerned would, if done in the State, constitute a drug trafficking offence (within the meaning of this Part) under the law of the State, and either—
(i) the person would, accordingly, be subject to the requirements of this Part by reason ofsubsection (1) or (2) of section 88, or
(ii) at the commencement of this Part, the person, as a person who has been convicted of the first-mentioned offence inparagraph (a), is required, under the law of the first-mentioned place in that paragraph (however that requirement is described in that law), to notify to the police in that place information of a similar nature to that required to be notified by a person otherwise subject to the requirements of this Part,
(c) the person is, at the time of the conviction, or thereafter becomes, resident in the State,
that person shall be deemed to be subject to the requirements of this Part and this Part shall, subject tosubsection (2), apply accordingly.
(2) For the purposes of such application,section 91 shall have effect as if for subsection (1) thereof there was substituted the following subsection:
"(1) A person who is subject to the requirements of this Part shall, before the end of the period of 7 days beginning with—
(a) in case the person is already resident in the State upon his or her so first returning and paragraph (c) does not apply, the date on which the person first returns to the State after being convicted of the offence concerned,
(b) in case the person is not so resident and paragraph (c) does not apply, the date on which the person first becomes resident in the State after being convicted of the offence concerned, or
(c) in case the date on which the person so first returns to, or becomes resident in, the State is prior to the commencement of this Part, the commencement of this Part,
notify to the Garda Síochána—
(i) his or her name and, where he or she also uses one or more other names, each of those names, and
(ii) his or her home address.".
(3) For the purposes of this section, a person shall be deemed to be resident in the State if he or she is ordinarily resident, or has his or her principal residence, in the State, or is in the State for a qualifying period.
(4) Where a person to whom this section applies is charged with an offence undersection 93, he or she shall, whether or not he or she would be treated for the purposes of section 93 as having a reasonable excuse apart from this subsection, be treated for those purposes as having a reasonable excuse if he or she believed that the act constituting the offence referred to in subsection (1) would not, if done in the State, constitute any drug trafficking offence (within the meaning of this Part) under the law of the State.
(5) For the purposes ofsubsection (4), it is immaterial whether a belief is justified or not if it is honestly held.
(6) In this section—
"police" means, in relation to the first-mentioned place insubsection (1), any police force in that place, or a member thereof, whether that force is organised at a national, regional or local level;
"qualifying period" has the same meaning as it has insection 91.”.
I move amendment No. 172:
In page 25, before section 24, but in Part 4, to insert the following new section:
"95.—(1) If the conviction, after the commencement of this Part, of a person for an offence gives rise or may give rise to his or her becoming subject to the requirements of this Part, the court before which he or she is convicted of the offence shall forthwith, after the conviction, issue to each of the persons referred to insubsection (5) a certificate stating—
(a) that the person has been convicted of the offence,
(b) the sentence, if any, imposed on the person in respect of the offence, and
(c) that the person has become or, as may be appropriate, may become subject to the requirements of this Part.
(2) If a sentence is imposed on a person in respect of the offence referred to insubsection (1) after a certificate relating to that offence has been issued under that subsection, the court which imposed the sentence shall forthwith, after the imposition of the sentence, issue to each of the persons referred to in subsection (5) a certificate stating the sentence that has been imposed on the person.
(a) the conviction referred to in subsection (1) is quashed on appeal or otherwise, or
(b) the sentence imposed on foot of that conviction is varied on appeal or otherwise,
the court which quashes the conviction or varies the sentence shall forthwith, after the quashing of the conviction or the variation of the sentence, issue to each of the persons referred to insubsection (5) a certificate stating that the conviction has been quashed or stating the variation that has been made in the sentence.
(4) A certificate purporting to be issued undersubsection (1), (2) or (3) shall, in any proceedings, be evidence of the matters stated in it without proof of the signature of the officer of the court purporting to sign it or that that person was authorised to sign it.
(5) The persons referred to insubsections (1), (2) and (3) are—
(a) the Garda Síochána,
(b) the person convicted of the offence concerned, and
(c) where appropriate, the person for the time being in charge of the place where the convicted person is ordered to be imprisoned.
(6) The mode of proving a conviction or sentence authorised bysubsection (4) shall be in addition to, and not in substitution for, any other authorised mode of proving such conviction or sentence.
(7) Rules of court may make provision in relation to the form of certificates under this section and the manner in which they may be issued.".
I move amendment No. 173:
In page 25, before section 24, but in Part 4, to insert the following new section:
"96.—(1) In proceedings against a person for an offence undersection 93 (where the person is a person referred to in section 94(1)), the production to the court of a document that satisfies the condition referred to in subsection (2) and which purports to contain either or both—
(a) particulars of the conviction in a state, other than the State, of that person for an offence and of the act constituting the offence,
(b) a statement that, on a specified date, that person was subject to the first-mentioned requirement in section94(1)(b)(ii),
shall, without further proof, be evidence, until the contrary is shown, of the matters stated in it.
(2) The condition mentioned insubsection (1) is that the document concerned purports to be signed or certified by a judge, magistrate or officer of the state referred to in that subsection and to be authenticated by the oath of some witness or by being sealed with the official seal of a minister of state of that state (judicial notice of which shall be taken by the court).
(3) That condition shall be regarded as being satisfied without proof of the signature or certification, and the authentication of it, that appears in or on the document.".
I move amendment No. 1 to amendment No. 173:
In section 96(1), after "matters stated", to delete "in it" and substitute "therein".
I move amendment No. 2 to amendment No. 173:
In section 9613), to delete "That condition" and substitute "The condition mentioned insubsection (1)”.
Amendments Nos. 174 to 188, inclusive, are related and will be discussed together.
I move amendment No. 174:
In page 25, before section 24, but in Part 4, to insert the following new section:
97.—In this Part, unless the context otherwise requires—
"authorised person" means a person who is appointed in writing by the Minister, or a person who is one of a class of persons which is prescribed, to be an authorised person for the purposes of this Part;
"a direction" means a direction given by the Minister under section 2 of the Criminal Justice Act 1960 authorising the release of a person from prison (within the meaning of that section) for a temporary period;
"offender" means a person in respect of whom a restriction on movement order is, or may be, made undersection 100;
"probation and welfare officer" means a person appointed by the Minister to be—
(a) a probation officer,
(b) a welfare officer, or
(c) a probation and welfare officer;
"restriction on movement order" means an order made by a court undersection 100.”.
This part of the Bill deals with changes in sentencing arrangements by increasing and clarifying the options available to courts. It is an issue in which I have a particular interest. I am a moving party behind it, so to speak.
First, the proposals provide a statutory basis for suspending and partly suspending sentences. At present, there are some difficulties in this regard. It has happened that judges instituted their own informal arrangement of bringing cases back to them for review after sentences were partly served. This was condemned by the Court of Criminal Appeal as being outside the existing provisions of the law. Second, the proposals introduce an arrangement for the imposition of a fine and deferral of a custodial part of a sentence. Third, they introduce restriction on movement orders and, fourth, they provide the legal basis for the introduction of electronic tagging.
I propose that the provisions under restriction of movement orders and electronic tagging may be applied as conditions for prisoners on temporary release. The use of these orders on bail was discussed at the Fine Gael Ard-Fheis. As a result of these proposed changes, the courts will be able to respond to the circumstances of the offender and, in co-operation with other agencies, such as the probation and welfare service, they will enhance the prospects for rehabilitation of offenders. The first section provides for definitions, in which there is nothing of significance. Deputy Jim O'Keeffe tabled two amendments but the Parliamentary Counsel did not appear attracted to them.
Amendment No. 175 is a lengthy section to be inserted in the legislation and there are a number of amendments to it. This amendment introduces a new power to suspend sentences. The section puts the power to suspend sentences and impose conditions on a statutory basis. It provides the courts with an additional means of dealing with offenders. In particular, it will enable the court to direct a person to deal with the underlying cause of the offending person through treatment or courses on, for example, substance abuse. Subsection (4) deals with this issue. Ultimately, this may be a much more effective basis for dealing with the issue and should, in principle, reduce the likelihood of reoffending.
The provision in subsection (1) applies to all sentences other than mandatory ones. The subsection provides that a court may suspend all or part of a custodial sentence subject to the person accepting the conditions. Subsection (2) requires the person as a general requirement to be on good behaviour and to keep the peace during the suspended period or during the part of the sentence that has been suspended. These conditions are to be laid out in a court order suspending the sentence.
Subsection (3) provides that the court can apply such conditions as it considers appropriate, having regard to the nature of the offence, that will reduce the likelihood of reoffending. Subsection (4) provides that, in addition to the conditions referred to in subsection (3), the court may attach conditions that the person should co-operate with the probation and welfare service to the extent necessary to ensure rehabilitation and protection of the public and that the person undergoes treatment for drug, alcohol or other substance abuse, or educational training and counselling — this is a reference to sexual offences — and that the person be put under the supervision of the probation and welfare service.
Subsection (5) provides that conditions should be specified in a court order for certainty. Subsection (6) provides that, where a person is the subject of an order under subsection (1), the probation and welfare service may at any time during the period of suspension, but before the expiry of the sentence, apply to the court to have any of the additional conditions referred to imposed, in other words, that one undertakes treatment. If a person gets out on a partly suspended sentence but that person is now on drugs or gone back on the bottle or whatever, the probation and welfare service is entitled to apply to the court effectively to top up the conditions on which the person was let out.
Subsection (7) requires a copy of the order to be given to the Garda or, where there is a partly suspended sentence, to the prison governor and the Garda. Subsection (8) provides that where an order is made under subsection (1), and it includes conditions imposed by subsection (6), a copy is to be given to the probation and welfare service and the Garda and, in the case of part suspension, to the prison governor and the Garda.
Subsection (9) provides that where a person is subject to an order suspending the sentence and commits a new offence, the court dealing with the new offence must, after imposing sentence for the new offence, remand the person in custody or on bail to the court which made the original offence. In other words, if someone comes before a court on a drunk driving or petty theft charge and it has been discovered that he or she was released from Mountjoy after being charged with manslaughter and one third of his or her sentence is still to run, one cannot say one is dealing with this case and it is for the other court to deal with the other case. The procedure must be triggered to get one back before the first court because one is in breach of the condition to keep the peace and be on good behaviour. This provision aims to stop cases falling between the floorboards and a garda saying he or she is only concerned with this summary offence. It requires the court to make direction that the original sentence, which has been suspended and breached, should not be ignored and let fall between the legal floorboards.
Subsection (10) provides that the court that imposed the order for suspension shall revoke that order unless it is unjust to do so. In other words, there is a strong presumption now that if one breaches the terms of a suspended order, a court should reactivate its suspended sentence unless it would be unjust to do so. Where the order is revoked, the person is required to serve the full original sentence or whatever remains of it.
Subsection (11) provides that a sentence for a new offence under subsection (9) shall not take effect until the reactivated part has been served. It also provides that in the case of sentences imposed by the District Court, the aggregate of sentences shall not exceed two years. It is policy that the court cannot impose a string of sentences on people that would keep them in jail for more than two years.
Subsection (12) allows for an appeal against a revocation of sentence and subsection (13) provides that where a garda or prison officer has reason to believe that a person has not kept the peace or been of good behaviour, he or she can apply to the court to have the order revoked. Subsection (14) states that where probation officers have a similar view of the conditions, they can apply to the court to revoke the order.
Subsection (15) provides that where a court fixes a date to hear an application under the previous two subsections, it should inform the person or the prison governor where appropriate and the person shall appear on that day or be produced to the court. Subsection (16) provides for the issuance of a warrant for somebody who does not appear. Subsection (17) provides that where a court is satisfied that the person is in breach of the order, it shall revoke the order and reimpose the sentence or such part of it as remains.
Subsection (18) states that a notice to attend court under subsection (15) can be delivered to the person by leaving it at his ordinary residence or by registered post. If that does not suffice, the warrant procedure will come into play to bring the person before the court. This provision is to prevent gardaí having to search for people. One of the problems occurs when a person goes missing or does not turn up at the probation and welfare service or whatever. We do not want to have an unclear situation with regard to how the person is notified of an intention to reactivate his or her sentence.
Subsection (19) provides that nothing in this section affects the temporary release of prisoners or the special review provisions of the Misuse of Drugs Acts. Subsection (20) makes definitions of the various terms used.
Deputy Ó Snodaigh proposes that all regulations should be subject to a positive vote in both Houses. In that regard we are dealing with authorised persons under section 97 which arises under amendment No. 174. His second amendment deals with section 110 which relates to technical specifications for electronic tagging devices. The committee will recall that amendment No. 10 inserted a new section 3 into the Bill. That section deals with the making of regulations giving effect to matters arising out of the Bill.
Deputy Jim O'Keeffe's amendments Nos. 2 and 3 propose to amend subsections (4) and (6) by allowing for other conditions as the court may deem appropriate. This is not necessary since the range of conditions is already extensive. However, I will take another look at that area because I am not entirely negative about it. His amendments with regard to the Garda Síochána are technical and the same applies to amendments Nos. 5, 8 and 12.
Amendment No. 10 in the name of Deputy Jim O'Keeffe relates to subsection (9) and deals with situations where a person who has had a sentence suspended is convicted of another offence. The subsection provides that following sentence for the new offence, the court must require the person to appear before the first court to deal with what happened with regard to the suspended sentence. Deputy Jim O'Keeffe proposes the remand should be in custody, in other words, that the possibility of a remand on bail should be removed. I think there is a constitutional problem in that regard. There is a presumption in favour of the right to bail.
For example, if a person were to keep the peace and be of good behaviour as a condition of five years of a serious sentence being suspended, and if the person were convicted by the District Court of petty assault, it does not necessarily follow that the five years' sentence would be reactivated by the other court. I appreciate what Deputy Jim O'Keeffe is trying to do but it would be draconian and could produce unjust results.
Is that the sort of situation where electronic tagging on bail would be useful?
When we produce those legislative proposals, we will deal with all the difficulties that will arise as a result.
I am disposed to accept amendment No. 13 in the name of Deputy Jim O'Keeffe.
We have only supplements and are not as organised as the Minister. Is that amendment on the fifth supplemental list?
I do not produce those lists.
I am just trying to keep up with the Minister.
Amendment No. 176 inserts a new section 99 which deals with imposition of fines and deferral of sentence. This is a hobby horse of mine which I would like to explain. It introduces arrangements to provide in cases where both a fine and custodial sentence are proposed to impose the fine but to defer the sentence, subject to certain conditions. For example, with regard to a public order offence or an assault on a person in authority, a judge, especially in the District Court, frequently feels that if the person walks out of the court without any sanction being imposed, he or she will be laughing up his or her sleeve. If the judge is lenient and adjourns the case for a year to see how the person behaves, the person may get the impression that nothing happened in the court.
This section is aimed particularly at minor offences and the District Court. I want the judge to be in the position to tell the person that because he or she acted like a bowsie the night before, he will impose a €500 fine for the moment and will think about whether the behaviour merits a prison sentence but defer that decision to another day. The person in that case will feel the pain on leaving court and know something serious hangs over him or her.
The reason I want to do this is that I stand four-square behind members of the District Court bench who have a tough approach to public order. I have seen cases where a less tough approach has been taken and there has been a degradation in the quality of life in areas of the country where District Court judges have taken too relaxed an approach. On the other hand, I hate the idea of somebody getting a jail sentence just to teach him or her, a lesson, because this could destroy his or her career completely. If the person does not get bail pending an appeal, his or her life could be completely destroyed.
What I am trying to do is to give judges a middle course in order that they can say to somebody they will impose a fine and, after six months or so, consider whether the person should do a jail sentence. This is probably a power which would have a beneficial effect if well exercised by the District Court Judiciary. It means the person suffers immediate punishment and knows there is a heavier penalty in the bottom drawer if he or she does not mend his or her ways. That explains my thinking on the section.
Subsection (1) provides that where a fine and prison sentence are contemplated, the fine can be imposed and the sentence deferred, but the court must indicate the term of the imprisonment it would propose. A definite term of imprisonment must be contemplated. Subsection (2) provides that the court will not exercise the powers unless the person concerned consents to the power of sentence being deferred. The reason for this is that there was a question whether it was permissible under the Constitution to stretch out the punitive process. To make it Constitution-proof, so to speak, this provides that the procedure will be operated in the case of a person willing to pay the fine and have the sentence deferred. This proofs the section against the challenge that it is a failure by the court to carry out its function.
Must the judge declare the sentence before deferring it?
He or she must give an indication of what he or she will do. In other words, if a person punches the barman, the judge can fine him or her, say, €500 or €750 and state, "I am thinking of imposing a three month sentence but I am prepared to give you a period of time in which to pay the fine and return, at which time I will decide whether it is also necessary to impose a prison sentence."
That is no choice.
It offers very little choice but constitutionally it is much firmer.
Is the Minister certain?
I think it is. If somebody wants to serve his or her sentence and if the argument is that both should have been imposed on the same day, it will be said he or she was given the choice and he or she could have done it. If a person wants to do the time, nobody is stopping him or her.
Does the Minister think that is safe?
It is safer than the alternative which worried us. We were worried that somebody might argue that the court was dangling a punishment under his or her nose.
How will it work in the appeals process?
A District Court order can always be appealed. It is clear one is not consenting to it if one appeals. If a person is content that this should happen, that is fine and if he or she wishes to appeal, he or she may do so.
I see a problem.
Is the Minister saying that if a person thinks the sentence is unacceptable and would be overturned by the court, it must be accepted?
No. If the person's argument is——
Is a person losing the chance of being given a lesser sentence by exercising his or her right to appeal?
If a person appeals——
A person can only appeal against an order made by the District Court judge at the end of the hearing.
In the case cited by the Minister, if the judge says he or she is fining a person €1,000 and that he or she is considering imposing a sentence of three months in jail, he or she also can tell the person concerned he or she can opt to go to jail for three months and pay the €1,000 fine——
The judge's bad thought.
A person can appeal against the bad thought and the order. The judge will say he or she is imposing a fine and deferring the sentence——
The person concerned cannot walk out the door.
He or she can always do so.
I foresee a serious problem.
The Deputy is seeing a problem that is not there. A person's right to appeal the order is not being removed.
Once a person appeals, he or she is appealing both the fine and the prison sentence.
Yes. It is an appeal against severity of sentence. A person is entitled to appeal a District Court order to the Circuit Court. What is being stated in the amendment is that no order shall be made deferring a sentence unless the person concerned is agreeable; such an order will not be made against his or her will.
What is the Circuit Court judge judging in such a case?
He or she is judging whether the District Court order was appropriate in the circumstances.
To contemplate a sentence that has not been imposed?
That is not the case. It is whether the District Court order imposing a fine and deferring the sentence was wrong or too severe. That is what the Circuit Court judge must consider.
If the accused agrees with the District Court judge, he or she can still appeal.
Therefore, he or she can change his or her mind afterwards.
No. The order deferringthe sentence cannot be made unless he or she consents to it. This is without prejudice to his or her right to appeal the whole sentence, if he or she regards either the fine or the penalty as too severe. This happens every day in the District Court.
No, it does not. The judge does not lean over and say, "Is that all right, young man? Is that okay?"
There is a slight difference. What happens in the District Court is that the judge says he or she is imposing a sentence of six months. He or she does not ask if the person concerned agrees. I do not wish to see a situation where somebody will say a judge is waving a sentence in front of him or her.
That is a real issue but I am not sure if what the Minister is offering is a solution.
I think it will work. The accused cannot complain that he or she is being treated leniently if he or she agrees to it.
No, leniently. The judge is not obliged to do any of this. He or she is entitled to say he or she will hand down a sentence and forget about the power under the new Bill. He or she can decide to hand down a sentence of three months and impose a fine and that will be the end of it. The real objective is to remove the possibility that somebody will say this is being done to him or her against his or her wishes.
If someone merits a prison sentence, this should be self-evident to the judge. The notion that he or she should fine and frighten the person concerned or even worse, consider his or her behaviour for the next six months——
This happens every day in the District Court.
It does not.
It is a court of summary justice.
I am telling the Deputy it happens every day in the District Court because judges decide to defer a sentence for six months and warn the person concerned that if he or she puts a foot wrong——
That is not my point.
I will allow Deputies Murphy and Ó Snodaigh to ask questions before I return to the Minister.
If a young fellow is in front of the court and he is advised by his solicitor that he would be better off taking the fine of €100 because the likelihood is that if he behaves himself for six months, he will not be given the prison sentence, he will jump at the chance. It is exerting undue pressure on him to give up his right to appeal. This is an infringement of his rights.
The right to appeal will be preserved.
All he is doing is deciding that he will not go to jail immediately. He is agreeing to this.
He is, without prejudice to his right to appeal the whole order.
Where does the issue of consent arise?If he says he does not agree and that he will appeal——
Then he will be sent to jail.
That is my point. It is almost blackmail.
It is not. It is putting somebody in a position where a judge will say, "I believe that for clocking the barmanyou deserve a jail sentence but I am willing to give you a chanceif you agree to this."
Are the giving of consent and a person's right to appeal mutually exclusive?
I do not understand that either. I am with the Chairman on this.
A person can enter a plea of guilty.
Where does the question of consent come in? If a party decides this is too onerous and decides to appeal, he or she notionally has to consent or he or she will go to jail.
I suggest we could put it in such a way that he or she does not specifically object to it in order to avoid using the term "consent".
There is some merit in this. Many persons who end up in jail would not be there if this option was available to judges to be offered as a carrot. If a person appeals, will it still be open to the judge to defer sentence?
This does not scrap the right of a judge to defer a sentence; it confers the right to decide that he or she will make an order imposing a fine and leaving the other option open.
If a person accepts this and then appeals, can the judge at that stage——
The purpose is to give judges extra room to manoeuvre; it is not to blackmail anybody. It is to enable judges to impose a monetary penalty immediately and leave the question of imprisonment over. As Deputy Ó Snodaigh has identified, it is to stop people being sent to jail as a lesson in circumstances where if this middle road was open, a judge could avoid sending someone to jail. It is without prejudice to everything — restorative justice and juvenile liaison schemes, etc. The purpose is to give a judge an additional option. If Deputy Murphy thinks the word "consent" ties a person into it and puts him or her in a position where he or she cannot appeal, we will make it very clear by Report Stage that it is entirely without prejudice to a person's right to say that what happened in court was entirely unfair from beginning to end and to request a different judge to consider the matter.
As the two principal spokespersons have left, it might be an appropriate time to break.