Select Committee on Legislation and Security díospóireacht -
Wednesday, 2 Oct 1996

SECTION 12.

Ms O'Donnell

I move amendment No. 12:

In page 11, between lines 8 and 9, to insert the following

"(c) the insertion of the following section:

23B (1) Where the Government or the Minister exercise their powers of commutation or remission under section 23 of the Criminal Justice Act, 1951, the provisions of this section shall apply to the commutation and remission.

(2) The clerk or registrar of the court which imposed the punishment, and, also, where applicable, of the Court which confirmed or varied the sentence, shall be informed in writing of the commutation or remission.

(3) A notice in writing shall be inserted by the Minister or the Government in Iris Oifigiúil within 28 days of the making of the commutation or remission stating—

(a) the name of the person concerned,

(b) the court by which the punishment was imposed,

(c) the date on which the punishment was imposed,

(d) the nature of the commutation or remission.

(4) Where for special reason, the Minister is of the opinion that any of the provisions of subsection (3) should not be complied with, the Minister shall be at liberty to apply in camera to the Court mentioned in subsection (2) for an order dispensing with the requirements set out in subsection (3) or any of them, and the Court may, if it is satisfied that such dispensation would be consistent with the common good, direct accordingly.'.".

Section 12 of this Bill makes a slight technical change to section 23 of the Criminal Justice Act, 1951. I believe this is an opportunity to examine the operation of that power of remission of sentence which is currently bestowed on the Minister. The Minister's amendment, by way of this Bill, does not achieve any substantive change to the current system of petitions and remissions of fines and sentences. It will be recalled that in Brennan v. The Minister for Justice, a recent case, the High Court expressed concern that the power to remit sentences was being exercised as a parallel or alternative system of justice. The High Court also warned that the Minister should only exercise this power in very exceptional cases, in circumstances where she believed the judge’s decision to be wholly insupportable. Whereas this Bill makes a technical change to the 1951 Act, it does not address the issues which were criticised by the court and which formed the basis of that challenge to the Minister’s power.

My amendment seeks to introduce transparency in the use of this ministerial power by providing that, where a decision has been made to remit or commute a sentence or fine, the court which imposed it originally should be consulted and the name of the person concerned and the fact of the remission be on the public record by publication in Iris Oifigiúil. It would introduce transparency and some level of record into this process. It is something which I put forward in an earlier Bill and I would welcome the Minister’s response to this attempt to make the system more transparent, given that it has been the subject of criticism in the High Court case in which the court ruled against the Minister’s use of the power. What new changes have been introduced since the handing down of that decision to meet the criticisms levelled against the use of the power by the court?

Mr. O'Donoghue

The petitions process is in a state of confusion since the judgment in the Brennan case which is now almost one and a half years old. The court said on that occasion that the power of remission in consideration of a petition should be used sparingly. Subsequently, the Minister for Justice was to bring forward guidelines or set out what criteria she would utilise in addressing cases which had been petitioned to her. I am one of the politically incorrect number who are not of the view that this power was abused. I am not aware of it having been abused by any Minister. I have had an equal level of success and failure with the petition process under Ministers of different political parties. There are circumstances where cases are petitioned to the Minister for Justice which would otherwise have to be appealed to the Circuit Court at considerable expense. It might be a case, for example, of an individual not producing his insurance certificate. He is fined in the District Court, his licence endorsed and he is possibly put off the road when he was insured all along. It may be a case of his forgetting the date of the court hearing. There are other instances too numerous to mention where relatively poor people, who could not afford an appeal but had justice and right on their side, appealed to the Minister for Justice. They were also cases where individuals were fined too heavily and petitioned the Minister.

My understanding is that Ministers did not make up their mind on these matters of their own volition, but that they were carefully considered within the Department of Justice by certain officials who were designated to examine them. I accept it would be more desirable if there were a more transparent system of petitions and I would not object in principle to it because I believe it to be common sense. I do not accept the theory advanced in some suspicious quarters that this power was abused by any Minister for Justice. My strong belief is that it was not and that there is no evidence to support that. Those who call for transparency and openness in the system are entitled to that and I have no problem or difficulty with it.

I do have a problem with the thousands of cases in the Department of Justice which are backed up awaiting a decision and we do not know when decisions will be made. Those whose cases are petitioned are finding the Garda calling to their house saying they must pay the fine, because if they do not they will be taken to prison. The production of a letter from the Minister for Justice, which may be over a year old, stating that the petition has been opened and the matter is being examined is not in itself a bar to the Garda Síochána insisting on incarcerating an individual whose case has been petitioned if he has not paid the fine, irrespective of whether he has right on his side.

Will the Minister for Justice, in the context of the amendment put forward by Deputy O'Donnell, let us know, as a matter of urgency, what precisely will happen to the many cases under petition in her Department? What criteria will be used and when will these matters be disposed of? The patience of the Garda in relation to many of these fines is wearing thin and that is understandable because they are coming under pressure from their superiors to enforce the warrants and it is their job to do so. Very often they do not want to do so because they realise that the circumstances are quite special and that under the normal petitioning procedure the matter would have been dealt with sympathetically by the Minister for Justice. I am asking for clarification on this matter as quickly as possible. I accept it is not a simple matter and that there are complicating factors, but 18 months should be ample time for the Department to resolve the matter.

Mrs. Owen

It is very difficult to give Deputies the answers to all the questions raised. I understand the intent behind Deputy O'Donnell's amendment. Following the Geoghegan case, the processing of petitions has virtually halted. When I became Minister for Justice I discovered a backlog of about 2,500 and that was before the Geoghegan case. It seems to have been the practice that petitions stayed with the Department of Justice for some time.

It is proving extremely difficult to design guidelines that will cope with petitions while conforming to the legal requirements set down in the Geoghegan judgment. The Geoghegan judgment was quite clear that the petition system was to be used where there were very serious reasons for doing so. It is difficult to design procedures in such a way that people will know whether they are entitled to petition in their particular case. If there is a general provision that only those on social welfare payments may petition because their incomes are limited, people on social welfare payments who can afford to pay their fines will be able to petition. If only those who have appealed the case to the Circuit Court may petition, those who cannot afford to go to the Circuit Court will not be able to petition and perhaps they should have the right to do so. These are the difficulties I am encountering in setting out guidelines.

Decisions have been made on only a very small number of petitions since the Geoghegan case. I have refused a number of cases but I have also granted some petitions since the Geoghegan case because I have been satisfied that they have come absolutely within the terms of the Geoghegan judgment. There were very serious reasons I felt they should be cleared. I am very conscious of the fact that there is a big backlog of petitions, but I am also preparing legislation dealing with the attachment of earnings.

I could refuse to grant any of these thousands of petitions, but that would not be fair. I have been trying to get through this backlog over the last 18 months. Many of these cases refer to fines and penalties imposed three or more years ago. I have discovered a practice — I am sure previous Ministers for Justice discovered it too — that if a petition is refused and there is then a change of Minister, the same petition is made again. Deputies might as well know of these difficulties. This is nothing to do, quite frankly, with party politics, as Deputy O'Donoghue said. I have petitions from all sides of the House, from all parties in the House.

Petitioning the Minister does not prejudice the Garda action. I say that in every letter that I send out. When a petition comes to my office I could perhaps automatically refuse it, but then I would not be giving that person a fair chance to make his or her case. There are some very obvious cases where it is quite clear that a Minister's power should be exercised. There would not be many where I would feel it was necessary to do away with the fine altogether but there are certainly some where mitigation is allowable.

We are doing our utmost to find a way through this difficulty. I will announce the procedures and guidelines as quickly as I can and in the meantime I am working my way through the backlog. Some Deputies may be on the receiving end of further lobbying when I make decisions on these cases and when members of the Garda arrive to collect those fines. If people have made petitions and their files relate to fines imposed three or more years ago, it is hard for me as Minister to make a judgment that in the intervening five years they have not been able to save £100 or £200, even if they are on fairly reduced incomes. It is very difficult to keep within the Geoghegan judgment and not refuse all these petitions.

I will not accept this amendment today because I am not ready to accept an amendment dealing with the publishing of names. I am reluctant to publish people's names and would have to give a great deal more consideration to this. People have a right to privacy. If at a particular time they cannot pay a fine and six months later they are in a position to, there is a certain loss of privacy if their names are published as the Deputy's amendment suggests. I understand what is behind this amendment and I have a certain sympathy with it, considering how the system operates at the moment. I am doing my utmost in the Department to make progress on this matter with the many other areas on which we are trying to make progress. I hope before too long to be able to lay before the Dáil new guidelines and procedures for the petition system.

Chairman

I do not wish to engage in debate about this issue because this whole area is for another day. We are just hitting on a small aspect of it here. However, the ripple effect must be causing concern in the Department of Justice. I am not sure how many petitions are pending at the moment but from my own experience in my constituency, it seems that there is a kind of nod and wink operation between the member of the Garda who goes out to process the warrant and the person who has to pay the fine. The member of the Garda tells the person to give the TD a ring to get the fine waived. That adds further to the petitions being made. It now appears to be almost part and parcel of the system. How many cases are pending at the moment?

Mrs. Owen

Around 3,000 cases are pending. There is clear evidence from some of the letters I receive that this is happening. A member of the Garda goes to collect the fine and the person does not have it. They explain that they just do not have the money and ask the garda what to do. The garda then tells them that there is a system of petition. They are told to petition the Minister or to talk to their TD about it and then the cycle starts again. People must recognise that if they are fined in court they have to pay their fines. However, the system is there and it is constitutional. Mr. Justice Geoghegan did not in any way overturn the power of the Minister to exercise discretion in this area, but it is a growing problem. People who do not have good reasons for petitioning the Minister should not do so because it just gums up the system. I refuse to open some petitions but where in some circumstances I must investigate, I get in touch with the court's office, the local gardaí, and so on to verify the circumstances of the case. At one stage judges were written to, but, apparently, replies to such letters were not received leading to a decline of that system. I am now considering procedures and the possibility of writing to judges requesting their views although some would argue that this would interfere with their independence.

Many issues have been discussed endlessly in my Department. We are now trying to bring this matter to a finality. While I wish to finalise matters, it is not as easy as I expected following the Geoghegan judgment.

Ms O'Donnell

The Minister said there are extreme difficulties in changing this process both politically and within her Department. She indicated that a parallel or alternative system of justice has operated on the basis of petitions from Deputies and others. However, this does not answer the challenge which was vindicated in this case. The High Court said the Minister must only exercise her power in exceptional cases where she believes the judge's decision to be wholly insupportable. This is not the pattern. The Minister said there has been a halt in operations since the Brennan judgment, but the fact that so many petitions have been backed up indicates how much this is part of the system although it undermines justice.

The Minister expressed concern about interfering with the independence of the Judiciary by writing to judges and so on. What greater interference with the independence of the Judiciary could there be than an amendment of a sentence or a fine which has been imposed by an independent judge, having heard the sob story, the difficulties of the case and having looked at the circumstance of a case? This is the point made by Mr. Justice Brennan in his application, when he pointed out that the judge who was seized of the matter would have been in possession of the facts of the case and all of the excuse in mitigation could have been given to the trial or the court, after which the judge would have imposed a sentence. If the penalty imposed by an independent Judiciary, as established by the Constitution, is administratively taken away or undone because of the petition system, an alternative system of justice prevails.

The Minister refers to difficulties and has said her Department has discussed this for a long time. This is not acceptable. The court has spoken. The practice is wrong, it undermines justice, interferes with an independent penalty imposed by the courts and makes a mockery of that layer of the criminal justice system at the lower end. They may be minor offences, such as the non payment of a television licence, but if the system is such that people know they can lobby their TDs it undermines law and order at the lowest possible level, which is a very important level. It is wrong if people believe they can unravel a penalty or have it administratively unravelled by an executive act, by a nod and a wink to a TD.

The judge was correct in challenging the Minister in the performance of that function. It was being used too often without any contact with the court and without transparency. The Minister must urgently introduce reforms. My amendment does not seek to do away with the power of the Minister, which is a legitimate executive power for a Minster to hold. However, where the Minister exercises that power, the court imposing the sentence should be notified and there should be transparency.

My amendment allows, under section 4, for the special reason referred to by the Minister. If there is any reason the publication of the fact of the remission is not in the interests of the person or would interfere with the privacy of the person an exception contained in my amendment allows for this.

The Minister and her Department are busy tidying up a range of loopholes in the law. This loophole has been determined to be wrong and in need of review. To call a halt to the situation without putting in place a substitute mechanism, such as transparency and consultation with the court that imposed the fine, is to run away from the problem. I hope that by Report Stage the Minister will have distilled the debate in her Department and will bite the bullet on this. It will mean a change in political practice. It will mean the gardaí will tell those who allege they cannot pay the fine that the petition is on the way out and the courts have ruled that it cannot be exercised in a light handed way as it was in the past.

The case brought before the court was deemed not to be an appropriate use of the power. Insufficient attention was given to the background of the case and it represented an alternative or parallel system of justice. Many have become used to this system, for example many Deputies consider it to be one way in which they can help their constituents if they cannot pay a fine. It has grown up in our political culture and it is time to change it. The court has declared that it should no longer be operated in the way it has been operated. The Minister should bite the bullet on this issue. I will withdraw the amendment now but I will resubmit it on Report Stage.

Mr. O'Donoghue

The last claim to infallibility was banished some years ago. The theory does not apply to anybody, nor to the Judiciary, nor would members of the Judiciary ever claim that it did. When judges gave decisions on, say, summary matters there were and still are occasions when the full circumstance were not available to the court. For example, there are cases where the defendant does not attend or is not represented. There are also occasions when certain facts which should have been made known to the court are not made known because the defendant or the accused does not wish them to become public. There are further occasions when judges impose fines which are too high.

In my experience the petition process operated for the most part in respect of cases dealing with the poorest of the poor, with fines imposed for minor matters on elderly people living alone, on young mothers with big families where the husband had either gone away or was deceased or unemployed, or middle aged men with big families who could not find employment.

The petitions process has not been abused. In my experience no Minister for Justice has ever abuse it. The Minister does not have the power lift the conviction under the petitions process. The Minister merely has the power to commute or remit the punishment. While I accept there is a thin line between the executive and judicial administration of justice, when we speak about the petitions process, we should not serve ourselves so poorly as to suggest that politicians do not have the integrity or the capacity to administer this system. I have no difficulty with the petitions process becoming more transparent, but I would not go as far as to suggest that the Progressive Democrats are using this process as a vote catching exercise or that they are doing so on a nod and a wink basis. Nothing could be further from the truth. It has been my experience and that of any Deputy involved in this process that only cases with merit got anywhere. A thorough trawl was done by the Department of Justice to ensure that the argument put forward in the initial letter by the Deputy, the solicitor acting for the accused person, the accused person, or anyone in whom he or she confided who wished to put forward a case was correct. The impression should not be created that this was some kind of a corrupt system designed by politicians for politicians because that is not the truth.

Mrs. Owen

My understanding is that this was not set up; it has been in place for many years and it is constitutionally sound. I want to correct Deputy O'Donnell's implication that Judge Geoghegan said this system was wrong because he did not say that. He said that in the four specific cases put to him by Judge Brennan he did not feel serious consideration was given to them. I am a little confused because on the one hand, Deputy O'Donnell says this is an alternative justice system which is not right and, on the other hand, her amendment only tries to tidy it up; she is not abolishing it.

Ms O'Donnell

It is constitutional.

Mrs. Owen

She either wants it or she does not. I get the impression from what she said that she would prefer if the system did not exist. Perhaps no one has ever asked her to file a petition. The judgment clearly gives permission to the Minister. The Deputy seemed to suggest she wanted to abolish the system, but I will not do so.

Ms O'Donnell

I did not say that.

Mrs. Owen

She said it is an alternative system. It is a system for people who feel they have not got their rights.

I also want to correct something which has added to the problem. The Deputy said the judge takes all the facts into consideration and then decides to fine the person, which means there should not be an alternative system. I do not understand what the Deputy means by that. One of the difficulties is that many people do not turn up in court or are not represented in court, therefore the person's circumstances are not presented to the judge. The judge then makes a decision on the basis that the offence merits a £200 fine. I or a Deputy will then receive a letter stating that the person was not able to be in court, they have £65 a week and they have two children. Difficulties arise when judges do not have access to all the information. Deputy O'Donoghue said nobody is infallible. His next door neighbour might make a strong case to have a fine mitigated, although they may look like they have all the money in the world.

I cannot give a commitment to have anything ready by Report Stage because I hope to push it through quickly. This issue requires careful process. I assure Deputies that petitions and fines will not be mitigated in any way contrary to the Geoghegan judgment. I have operated the system in keeping with the Geoghegan judgment which came in shortly after I took office. I am not aware that the system was abused. There are many anecdotes about people who are able to get fines mitigated if they know somebody, etc. However, each file is examined according to the person's circumstances and a recommendation is made. I was not in office long enough before the Geoghegan judgment to say how many thousands of petitions came in and how many were refused. The system is now being revamped, not because there was anything wrong with it but to ensure that those who make petitions know they have little or no chance of them being granted.

Amendment, by leave, withdrawn.

Section 12 agreed to.