Dáil Éireann - Volume 398 - 15 May, 1990
Private Members' Business. - Criminal Justice Bill, 1990: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: Deputy Cowen is in possession and he has 24 minutes left.
Mr. Cowen Mr. Cowen
Mr. Cowen: With your permission, Sir, I wish to share my time with Deputy Quill.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: Is that agreed? Agreed. Will the Deputy say how he is sharing his time?
Mr. Cowen Mr. Cowen
Mr. Cowen: I will be very concise. Deputy Quill may have 15 minutes of my time.
When I last spoke on this debate I was making the point that under this Bill, if enacted, the Director of Public Prosecutions would have power to appeal sentences. I was querying whether this would, to some extent, dilute the independence of the Director of Public Prosecutions in the performance of his duties as required under the Prosecution of Offences Act, 1974. Section 2 (5) of the Prosecution of Offences Act, 1974, requires that “The Director shall be independent in the performance of his functions”.
He may decide, contrary to the perceived public opinion if this extra power were to be granted, not to proceed with an appeal on the grounds as outlined by the prosecutor in the case. On the basis that this extra power being given to him is not being exercised in that particular case, his independent decision may, in  fact, heighten public controversy. The point is that in the independent performance of his duties as Director of Public Prosecutions, cases will arise whereby this power, if granted now, might raise an expectation that the power of appeal as envisaged under this Bill will be exercised by the Director of Public Prosecutions. The publicity which such cases attract would, in fact, have the effect of anticipating a certain course of action by the Director of Public Prosecutions which may not on the facts of the case be warranted. This would have the unintended effect of undermining public confidence.
It should also be pointed out that the Director of Public Prosecutions does not give reasons for the decisions he takes. The rule about not giving reasons for decisions — for example, the decision not to prosecute — has existed since the foundation of the State and has been followed by successive Attorneys General, and by Directors of Public Prosecution since the office was created in 1974. If there were to be a departure by the Director of Public Prosecutions in the exericse of this power, if granted to him under this Bill, there would have to be compelling reasons for it. If such a prospect were entertained, it would be necessary to provide that the publication of reasons would be absolutely privileged. There is also the fact that the Director of Public Prosecutions is the prosecutor in the cases in question. His office is both the contestant and the protagonist in the cases concerned so the decision to appeal the leniency of sentence or, as I suggested earlier, his decision not to appeal, would be a decision of his alone without consultation with anybody else who is not as directly involved in the case concerned but who would have to have a certain legal competence in these matters.
It is to be noted that the comparable United Kingdom legislation gives leave to appeal to the Attorney General and not to the Director of Public Prosecutions. The resolution of that problem may well lie in section 2 (6) of the Prosecution of Offences Act, 1974, which provides that:
 The Attorney General and the Director shall consult together from time to time in relation to matters pertaining to the functions of the Director.
The provisions of section 2 (6) are sufficiently wide to include consultations between the Director of Public Prosecutions and the Attorney General regarding the Director of Public Prosecutions' decisions. I understand that the Director of Public Prosecutions does not see this provision as any diminution of the statutory independence which he is required to exercise under the legislation. The independence of the Director of Public Prosecutions should be distinguished from his accountability. Independence means that he cannot be told what to do in any particular case. The consultation envisaged in section 2 (6) of the 1974 Act does not involve any interference with that independence. Such a mechanism, if incorporated in the legislation, might provide the mechanism required for the types of cases envisaged in the Bill proposed by Deputy J. O'Keeffe. These are cases where the public can be satisified that the decisions of the Director of Public Prosecutions are not beyond scrutiny.
The Law Reform Commission in looking at sentencing policy will be able to examine it in its widest context so that a set of comprehensive reforms in this area could be recommended which might ensure a more efficient and uniform administration of justice in this jurisdiction. I hope that part of this review of sentencing policy will encompass a major reassessment of the system of prosecuting offences. I believe that some of the concern over consistency, or the lack of it, arises from evidence that the prosecution of cases is handled unevenly in different areas. I believe that the judges in the main apply similar principles and guidelines in the exercise of their duties and powers in sentencing offenders guilty of serious crime. I hope the Law Reform Commission will be able to report relatively quickly, and more importantly,  that we will have a Bill published dealing with this area soon thereafter.
Miss Quill Miss Quill
Miss Quill: The issues raised in this Bill are very central to Progressive Democrat policy. Indeed, our policy document on crime, compiled well before this Private Members' Bill was circulated, states quite specifically:
The State in a case should be given the general right of appeal against acquittal and lenient sentences. Such a right is currently and quite rightly available to the defence. Its absence on behalf of the State has caused serious and understandable disquiet.
However, it is our belief that the changes required here are so fundamental and the issues so complex, especially in a country with a written Constitution like ours, that the advice and expertise of the law Reform Commission must be fully sought before proceeding any further with the proposed legislation. This was our position from the start. It was always our intention that a matter of this nature ought to be referred to the Law Reform Commission before final debate in this House.
I fully concede that this Bill is well intentioned. I wish to pay fulsome tribute to Deputy O'Keeffe and his party for the work they have put into drafting this Bill. I further acknowledge the frustration that results for the sponsors of a Bill like this when action appears to be unduly delayed. It is for this reason that I have sought assurances from the Minister that no undue delay will take place and that the necessary resources will be put at the disposal of the Law Reform Commission to enable them to carry out this work, and the work required of them, as a matter of urgency.
We know from experience that the process of updating the law has proved too much for successive Governments in the past because even when policy objectives have been agreed, the resources necessary for the highly technical draftsmanship involved have been lacking in all too many cases. It is therefore, essential to make additional resources available to the Law Reform Commission as  a matter of urgency to enable them to carry out the work that they will be required to do as a result of this Bill having been brought before this House.
The Law Reform Commission is the body that has the expertise to cast our clearly formulated objectives and aspirations in correct legislative form, but they cannot do the work in the timescale necessary unless they are given adequate resources. It is the task of the Minister to ensure that, as of now, those resources are made available.
Our system of criminal justice in all its elements is now the subject of severe on-going public scrutiny, public scrutiny on a level never before experienced in human history. It is of crucial importance therefore that at all times and in all cases justice is not alone done but is seen to be done. This is the key to retaining public confidence in the rule of law and in the institutions of State. Where it is perceived that too lenient a sentence is handed out there is justifiable public outcry followed by intense media coverage and confidence in our system is consequently and inevitably eroded.
This has happened in a number of notable cases in the recent past, particularly in cases involving rape and sexual assault on women. This may be due mainly to cultural conditioning where certain echelons of the Judiciary are impervious to the development of modern thinking in relation to women's rights. In this respect the recipe for rectification may very well lie in the provision of more retraining and refresher type courses for members of the Judiciary. We live in such rapidly changing times that no public servant, whatever the rank or status, can be immune to the need to keep abreast of developing norms and values. I am happy to say that even the Church is moving, and has moved significantly, in that direction this very day.
Disparity in the severity of sentences for similar routine type offences is one that causes on-going concern. It has happened in the past that, for example, an offence that warranted a year long sentence in one area could be the subject  of a suspended sentence in another and certain district justices would have a good or a bad name, depending on the side of the pitch from which you are viewing the game. This is an issue that must be tackled without delay. It is not unknown within the system that certain clever solicitors, on behalf of their clients, can either delay or bring forward a case to coincide with a particular judge being on the bench. In that way disparity in sentencing policy on behalf of certain people sitting in the bench can be exploited and the law manipulated. That means that our courts become courts of law and not courts of justice. People who can afford to employ solicitors who are adept at doing this sort of thing can come out well, others can finish up getting the rough and raw end of what is called justice. That is another issue that has to be looked at in the context of reform or of investigation of sentencing policy.
This debate has put a new and sharp focus on the whole question of sentences. Unquestionably there is an urgent need for a total overhaul of our sentencing policy. The clear signals coming out from our prisons these past weeks is that our prison system is on the brink of collapse. Clearly there is an overwhelming need to develop alternatives to prison sentences as a matter of enormous urgency. A number of alternatives to prison are working well in other countries. Such alternatives must be explored and exploited here at once. Community service orders, payment of fines by instalment and electronic tagging are all possible options.
One lesson to be learned from recent disturbances in prisons is that one of the biggest problems within the system is overcrowding. We are sending far too many people to prison. Our prison buildings are not capable of accommodating all of these. A number of people who are currently in prison could very well serve their sentences in other ways elsewhere. This is a matter on which we cannot afford to drag our heels. It is significant, for example, that in 1989,  1,000 people were in prison for non-payment of fines. There must be a more cost-effective way to deal with that type of crime. I just pick this out as one example and to say that it is a matter that has to be considered urgently. Otherwise we will have very serious problems on our hands.
As I said at the outset, Deputy O'Keeffe is to be highly commended for the work he has put into drafting this Bill. The principle of what he advocates is essentially right and very much in accordance with what my own party would advocate. However, a number of points are of concern to me and have to be looked at, particularly in the context of consideration by the Law Reform Commission. It is essential that a time limit be put on an appeal. If an appeal is granted it is essential that a time be set beyond which the appeal could not be lodged and that that time be clearly specified in the Bill. A fault in the Bill as it is drafted is that there is no reference whatsoever to time.
It is also crucial, if an appeal mechanism is to be effective, that legal aid be made available where appropriate. Otherwise the proposed appeal mechanism would be very limited in its application. Perhaps in cases where an appeal would be most appropriate, that appeal could not be lodged due to the lack of legal aid. It is crucially important that provision be made for legal aid within the context of the Bill. We have been very remiss in this House as regards making adequate provision for the Legal Aid Board. If this Bill is to become a reality we will have to put our money where our mouth is. We must make adequate provision for legal aid and ensure that the appeal mechanism is not denied to anybody where it is deemed to be appropriate.
The question as to whether the Director of Public Prosecutions or the Attorney General should have the power of referral is one that has plagued my mind for the last number of days. As a lay person I sought advice from a number of people who are eminent in their own  field and the difference of opinion was quite interesting. The arguments for and against each person were very strong and cogent and in the end I was much more confused than I was at the start. That convinced me that this matter must be referred to the Law Reform Commission or some such independent body. It is of crucial importance that we get that part of the legislation right from the start. I would not take it upon myself to say whether the person to refer a case ought to be the Director of Public Prosecutions because, in my books, the arguments for and against are equally strong and the scales are equally balanced. Therefore, the matter must be referred to the Law Reform Commission or other independent body for clarification.
The Progressive Democrats strongly support the text of this Bill. We are very much in sympathy with what it proposes. We think the time is right for such legislation and that there must not be any undue delay. Unquestionably, we cannot afford any further diminution in respect for the rule of law. The Minister has clearly indicated that it is his intention to refer the matter as quickly as possible and to act on the recommendations of the Law Reform Commission as soon as possible after they become available. I accept his bona fides in that respect. I have one urgent request, which I make now on the Floor of the House, and which I intend to make through any other forum available to me, that is, that resources be made available to the Law Reform Commission to enable them to give priority to this issue so that action can be taken sooner rather than later. It is in everybody's interest that that be done.
Mrs. Barnes Mrs. Barnes
Mrs. Barnes: With the agreement of the House I would like to share my time with Deputy McGahon.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: How many minutes is Deputy Barnes giving to Deputy McGahon?
Mrs. Barnes Mrs. Barnes
Mrs. Barnes: Seven minutes. I welcome the contribution of Deputy Quill so far as she and her party recognise the  need for this kind of legislation. All of us know that this area of law is one that gives rise to concern and to a lack of confidence in our whole system, not only of law, but of justice. In some instances there has been considerable outrage at the sentences handed down. I deplore sensationalism particularly in regard to cases dealing with sexual abuse and rape but there have been times when the sentences handed down have been so difficult to understand and accept, considering the gravity of the case concerned, that people in the media and others have been led to highlight them.
Some Members on the opposite side of the House have indicated, or have almost alleged, that that type of concern is more or less media hype. I do not think so. It is a correct reflection of the concern felt by people when some outrageous decisions are made and which do not, when all the dimensions are taken into consideration, go in any way to making people understand or accept sentencing policy. We should not insult the intelligence of our ordinary citizens by suggesting that when sentences which do not appear to go anywhere near fitting the crime are handed down, in some way it is our ignorance of the law, our exclusion from the court and the fact that we did not hear all or every detail which leads us to question the adequacy of the sentences.
I am sure Deputy Quill will agree with me regarding some of the sensational and titillating detail given particularly in cases dealing with sexual abuse and rape when every line and every detail is highlighted publicly. Therefore, it is all the more surprising and shocking that when we are acquainted with the details of some cases we can still be outraged at the sentences handed down. It is an insult to suggest that either the media or ordinary citizens are in any kind of witch hunt when this happens. They are reflecting what the people feel should emerge from the courts and that is a sense of fair play.
Of the cases reported to rape crisis centres throughout the country only a small minority end up in court. This can be attributed to the way such cases are  dealt with in court. It is an aspect that I trust will be dealt with during the course of the rape Bill. The sentences handed down, not only in cases of rape but in other cases of violence against women may be, as Deputy Quill suggests, a reflection of the status of women in Ireland, of the acceptance of violence against women in our society. In some recent cases we have been given even more cause to be angry when suspended sentences have been handed down in cases of child sexual abuse. I am not engaged in a witch hunt. I do not want to have anyone hanged or flogged but in fairness to society and in fairness to the life and sometimes the damaged life of young people, the seriousness of the crime is not reflected in the sentence. Something which is even more serious for the perpetrator of such crimes is that in receiving suspended sentences they are not being put in the way of the treatment they need and which they would get if sent to prison.
In his speech the Minister said that legislation could lead to double jeopardy on behalf of an accused. All I can say is that double jeopardy is much more prevalent in the treatment of victims in courts than in the treatment of the accused. The victim is more at risk of having her case reflected in a derisory and insulting sentence than is the defendant. The Minister said that the vast majority of the decisions made in our courts are just and fair. That is not good enough. All decisions should be just and fair in so far as is humanly possible. We should not have had so many cases giving rise to disquiet both on the part of legislators and of the ordinary citizen. Indeed, it was this disquiet that led to the urgency of legislation of this nature.
Regret must be recorded here that this actual concern and, at times lack of justice, was so reflected in our society that, four years ago, the Law Reform Commission were asked to look at this area. Like every other Member of this House I pay tribute to the work, dedication and commitment of the staff and members of the Law Reform Commission. If legislation which is of the utmost concern to  people in regard to justice is not to be delayed we must provide the Law Reform Commission with the resources necessary to bring forward recommendations expeditiously, effectively and efficiently. If we fail to do that we are merely making scapegoats of the commission for our delay in bringing in legislation that is overdue.
Since I came into this House I have not yet encountered one single item of legislation that has not been long overdue. Let us fund the Law Reform Commission to enable them to make the recommendations we are asking for in many areas. A tremendous number of obstacles have been put against the line, tenor and thrust of this legislation. These are uncalled for and are delaying further the processes that need to be put in motion. Deputy Jim O'Keeffe and other Members who spoke on this side of the House said if amendments were needed, if areas or dimensions needed to be looked at, that could be done in the ordinary Stages of the Bill, such as Committee Stage.
It is a matter of great regret that this Bill is not being accepted by all Members of the House. One of the most basic rights in any country, civilisation or state, is the right to safety and freedom of movement, protection and a feeling of security not just on one's home but going to or from one's place of work or recreation. Sad to say, today there are a number of “no-go” areas for many people — the elderly, women and, in some cases, everybody. We as legislators must take that into consideration. We should be working overtime to ensure that we bring in legislation that will allow people not just to believe they are protected under the law but that they are protected in reality. Nothing is more eroding of the law and people's feeling of protection within it than inconsistent or lenient sentences that lead to public outrage — and we have had many of them.
The Minister has brought up issues like the concept of double jeopardy which he said should be at least looked at. Of course it does not need to be looked at,  relating as it does to acquittal when there is no risk or danger in bringing in this legislation. He said that judges may be expected to take into account a wide variety of factors before deciding on a sentence, including the nature and circumstances of the offences, public good and so on, and that the proposals in the Bill would add a new dimension which must at least be looked at.
It would be insulting in the extreme for us to suggest that in bringing in legislation to strengthen, to support and to bring consistency and guidelines into judges' sentencing, we would seek to lumber them in some way or to add to their work load. This legislation is designed to be of tremendous help not just to the due process of law but to the judges processing it. Not just from the point of view of the ordinary citizen but from their own point of view the Judiciary must be seen not to be undermined by the behaviour or attitudes of some of their members.
As far back as December 1984 NESC issued a very fine report and their recommendations are as relevant and urgent today as they were when first published. The report entitled, The Criminal Justice System — Policy and Performance, starts off by saying that consistent and fair treatment of cases can be subsumed under the concept of due process of law which includes three criteria of fairness: (1) openness in decision-making, (2) a right to be heard in one's own defence and (3) impartiality by those who make decisions. Those three points are fundamental to this legislation.
In regard to openness in decision making, we must be open. We must not feel anything is a closed shop or that we are impinging on the rights of judges or anybody else if we insist that there be a right of appeal where a sentence would seem to warrant an appeal. Regarding a right to be heard in one's own defence, a person's right of appeal should be ensured. In the legal system there should be a right of appeal such as the legislation is providing regarding inconsistent or too lenient sentencing. In regard to impartiality by those who make the decision, nobody is suggesting that the judge may  be subjective or partial. Judges are always at great pains to make sure that they are not seen to be partial.
The NESC report looks at how our system works, and a large part of it is given to sentencing. It says that very little is known about sentencing policies practised by the Judiciary and that the degree to which sentencing policy may vary by judge, and even by offence, can discredit the courts. It goes on to refer to sentencing policies in other countries, such as the US and to a lesser extent the UK, which have led to the introduction of consistency of sentencing. For instance, in the US judges who impose sentences outside the guidelines laid down and accepted by the peer group of judges are asked to indicate their reasons for departing from this precedent. We have not moved to that stage yet, and I know that in certain States of the US judges come together out of concern for an extraordinary sentence, either too lenient or too harsh, and as a peer group can demand and get an appeal.
In this legislation Deputy O'Keeffe is attempting to bring in the same kind of mechanism, defence, fall back. We are dealing with human beings and human behaviour which can never be perfect, and we have to make sure we have some kind of appeal so that when it seems the system is not working perfectly, we know there is a chance of it being reviewed and justice being seen to be done.
Very little is known about sentencing policies in this country and usually only extraordinary sentences attract the headlines and public awareness. We do not know enough about sentencing policy. We need data reviewed and reviewable and publicly accountable regarding policies and records of sentencing, and that is one reason we are in this limbo today. A Leas-Cheann Comhairle, how many minutes of my time are left?
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: I was about to suggest that the forcefulness of your contribution was awakening concern in the minds of other Deputies. If Deputy Barnes remains in possession until, say, a quarter to eight, then we  could agree to giving ten minutes to Deputy McGahon. You will be in possession for another five minutes.
Mrs. Barnes Mrs. Barnes
Mrs. Barnes: I should like to thank the Chair for his help. The Bill seeks to improve the due process of law and to guide our judges in regard to sentencing. In fairness to the judges, it is imperative that we introduce sentencing guidelines they can follow. They should understand that their sentences can be subject to review on appeal.
There is a lack of information on how our courts operate and that is extraordinary. In such circumstances we cannot say that we have an open legal system. The need for openness was stressed in the NESC report and we should follow that up.
People like the Director of Public Prosecutions have called for a training scheme for our judges. In a complex matter like dealing with criminals, particularly in view of the increase in crime, it is important that our judges be properly trained. That is important if the law is to operate properly. In France, for example, people soon after they qualify undergo training in all aspects of the law with a view to taking on the position of judge. I accept that our laws are not the answer to all our problems and that there is a need to build up support services so that our courts will not have to deal with so many cases. I am sure the Minister will agree that we could have a lengthy debate on the importance of back-up services for our courts. We cannot allow the courts or the law to be undermined to the extent that people will not have any confidence in them. People should not be afraid to go to court on the basis that they will not get a fair trial. They should be made aware that if a case goes against them they have a right to appeal to a higher court.
Legal practitioners are aware that some judges have their own peculiarities. Some have described the system as Russian roulette and say that the sentence for a crime depends on the judge one appears before. That is not acceptable, least of all to the judges. The Bill is  overdue and I am sure that it will be welcomed by the judges. Those who are afraid to take a case to the courts should have confidence in our courts and the appeals system. They should feel confident that the State will support them and that, where necessary, sentences will be reviewed.
Mr. McGahon Mr. McGahon
Mr. McGahon: While emigration and unemployment are undoubtedly the chief causes of concern among our people, in my view, without a shadow of doubt, the greatest cause of concern is the reinstatement or the maintaining of law and order. Law and order has been systematically dismantled here over the last 30 or 40 years due, I suggest, to the advent of affluence and the appearance in our midst of liberalism and bleeding hearts who have infiltrated society with their ethos. I am not looking at Deputy Barnes.
Minister of State at the Department of Industry and Commerce (Mr. Smith) Minister of State at the Department of Industry and Commerce (Mr. Smith)
Minister of State at the Department of Industry and Commerce (Mr. Smith): Deputy Barnes is sorry she shared her time with Deputy McGahon.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: Deputy McGahon should not encourage other Members to interrupt him.
Mr. McGahon Mr. McGahon
Mr. McGahon: Their ethos is that there is no evil in the world, that everybody is on the same wavelength and should be allowed do what they like. It is their view that wrongdoers are basically misunderstood and that society should analyse them and their actions rather than punish them for their crimes. The catalogue of crime here is frightening and murder occurs frequently. Just three weeks ago a 73 year-old man in my town was beaten to death by a group of youths. That was a dastardly crime and three of the gardaí who found that man's body got sick at the sight of it.
One hour after a victim is buried the crime is forgotten. Rape and sex crimes are steadily increasing due to a lack of deterrents. Rape is rampant and only a small proportion of rape offences are  reported. Last week we read the horrifying story of a 78 year-old woman being raped in north County Dublin. To borrow a phrase from the colourful repertoire of the Leas-Cheann Comhairle to describe what I would do with the guilty person, I would hang the beast by the “balubas”.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: The phrase the Deputy attributes to the Chair has no foundation in fact.
Mr. McGahon Mr. McGahon
Mr. McGahon: I thought the Chair used that phrase on a previous occasion. Larceny is taking place on a grand scale and tourists are robbed on a regular basis. The bottom line was reached recently when the Welsh soccer team lost their money and valuables when they were playing an international match in the fashionable Ballsbridge area. Discipline has been abandoned with a large percentage of teachers retiring early due to stress and tension. They are worn out trying to cope with youths reared on a diet of TV and videos depicting savage and violent crime and sex offences. Our people are crying out for law and order. In our country armed robbery is now common place.
Recently we learned that politicians are proposing to remove the death penalty. They have asked the Garda to protect lives and property and they want that penalty for the murder of members of the force removed. The recent plea by the GRA in Tralee to retain the death penalty has as much chance of being heard by politicians as I have of being elected Governor of Alabama.
Side by side with this situation we have the spectacle of unbelievable sentences being handed down by the courts. The ordinary man in the street cannot understand why the perpetrators of sexual assault, rape and interfering with 11 year old children do not get a long jail sentence. He cannot understand why the murderers of Timothy Kidman — cruelly murdered for a few rabbits — can result in a “not guilty” verdict on a manslaughter charge in respect of the two people concerned. I also fail to understand that.
 The man in the street cannot understand how drunken drivers can roam the roads producing the highest percentage of deaths and injuries in Europe without any realistic punishment being imposed. Hit and run cases regularly fill the columns of the evening newspapers. The Fine Gael proposal to allow the Director of Public Prosecutions — a most mysterious office — to appeal verdicts to the Court of Criminal Appeal is the most practical one I have heard since I came into this House eight years ago.
The necessity of introducing a mandatory sentence for all serious crimes should be recognised and immediately implemented by the Government. If crime is to be defeated radical and realistic measures must be promoted but unless radical change is effected that will not happen. Ireland, in the early years of the next century, will be a criminals' paradise because of appeasement policies in relation to terrorists who commit foul crimes against humanity in the name of mother Ireland, by do-gooders and fools in Government and in the Dáil. The courts will reap the whirlwind of this foolish policy of appeasement.
The recent statement by Mr. Jim Ferry of the Garda Representative Body that the Garda are hampered and handcuffed by the law is a barometer of the concern which gardaí feel about the state of law and order. A recent survey conducted by Voteline in the Evening Herald on whether people supported the death penalty resulted in 800 people in one night telephoning the newspaper; 83 per cent supported the retention of the death penalty. Why is that cry from the heart of the nation ignored by politicians who assume they know better on this issue than the ordinary people?
Until the Dáil lays down clear guidelines to the Judiciary we will continue to have crazy sentences which do not fit the crime. Until politicians face up to their duty to protect society the weak and the vulnerable will suffer, criminals will continue to rule the roost and we will have further spectacles of criminals who have transgressed against society climbing on to the roof of Mountjoy Jail and giving  the two fingered salute to the rest of the country by demanding their “rights”. The rights of people to be protected from crime and criminals is the question which all politicians must answer. The Government, in accepting this much needed proposal, can start this necessary process.
The proposal to allow the Director of Public Prosecutions to appeal to the Court of Criminal Appeal is a most practical, long awaited and realistic method of dealing with the inadequate sentencing of courts. I will not knock the legal profession — I wish I was a member of it — but the ordinary person fails to understand the ridiculous sentences handed down by the courts. I cannot understand how people are more concerned with technicalities and points of law than with apportioning sentencing as a result of a guilty verdict by ordinary people even if they do not have any knowledge of the law.
Over the last few years there have been inexplicable decisions on cases in our courts. I will not go through them but I should like to draw attention to the rising graph of crime. The Government — irrespective of who is in power — must face reality and realise that most criminals in our jails are recidivists, people who have been in twice, three times or — in some cases — maybe six times. These people are engaged in a war against the rest of society.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: I must advise you, in the terminology of the courts, that I now must call counsel for the defence.
Mr. McGahon Mr. McGahon
Mr. McGahon: It is always a pleasure to listen to your animated language. Thank you for allowing me some liberty and for providing me with that very nice phrase which I used some time ago.
Mr. Davern Mr. Davern
Mr. Davern: I am surprised that Deputy McGahon did not use the violence perpetrated on him by the bookies on various occasions. Indeed, even in that regard, there have been some extraordinary decisions in regard to bets  made which were not honoured on many occasions by bookies.
The vast majority of people have never been in a courthouse in their lives. I have only been in court twice, once when my car was stolen and I felt more like the criminal than the person who had offended against me who was smiling although he had stolen and wrecked my car. The other occasion I appeared in court was as a character witness for someone.
Mr. McGahon Mr. McGahon
Mr. McGahon: Was it on behalf of Lester Piggott?
Mr. Davern Mr. Davern
Mr. Davern: No. I am not the greatest lover of the legal profession although I am not being personal about anybody in the House who is legally qualified, such as Deputy Andrews. However, there is a common perception among the public that all this is a game played by the prosecution and defence. It is a dangerous perception because people in many walks of life are losing confidence in our system of justice. I have had experience of children of an offending father in a sexual case coming to me telling me that they want him locked away for far longer than the sentence of three years imposed for having abused four or five of his children. It is an experience which will affect them for a far longer period than he will serve. How can we expect people in that situation to have confidence in the system? As Deputy Barnes said, the system of justice has stopped many people from making a complaint.
I know of a recent case when a young child was sexually abused in a village but the family did not proceed with the case because the child would have to give evidence. She was only five years of age and the family did not want to subject her to this in case she would be further scarred. They felt that perhaps she was too young to remember the offence. There have been cases in which daughters have had the courage to go to court in the first place to give evidence against their natural father and who have been shocked and horrified to see him getting a sentence of  three years. That father committed one of the most heinous crimes of a sexual nature, he had responsibility for those children who trusted him. It is ridiculous to give a sentence of three years to someone who has abused his daughter regularly over the years.
It frightens me to hear some of the older members of that family, such as uncles, talk about that case in the vein: “wait until he comes out; we will deal with him then”. That type of attitude frightens me because they perceive the Judiciary as not having done their job. In my opinion, in no circumstances could a judge justify that decision. In another court case in this city some years ago a young girl from my constituency was found guilty of the manslaughter of her husband. She was 19 years of age, had got married, had a baby, only to find that her husband was homosexual and left her. He then returned in an endeavour to have the child brought to his home, with his new boyfriend, to be reared by them. Just imagine the shock to that young country girl, who had come from a mountainous region, who had never encountered that type of behaviour before. The basic and overriding concern of all mothers would be for the protection of their child or children. The excuse advanced for the severity of sentence in her case was that previously the jury had produced an unsatisfactory verdict for the judge in another case in Dundrum — about a shooting from a motorbike or something else — when the judge was not happy with their decision, leading to him making an example of this young girl and her husband. That clearly demonstrated a total lack of consistency of sentencing as far as the system is concerned.
I am not looking forward to a recurrence of the Paris Revolution here with the public crying out “hang him”, when the judge must act immediately and have the criminal hanged. I am concerned at the inconsistency of sentencing in all of our courts from the very bottom to the top, the public perception of which is confused and understandable.
 I have been in court once only when my car was stolen. In that case the offender, a young lad, did not turn up in court, got a three months suspended sentence and was fined £25 expenses, whereas I had to pay £2,000 for the repair of my car. I was asked by the judge had I locked my car; I could not swear that I had locked it, but was treated to a lecture from him to the effect that I should have ensured that my car was locked. Nonetheless it was my car, whether locked or not. I felt more like a criminal in that court than the offender who had not even seen fit to turn up.
I should like to compliment Deputy Jim O'Keeffe on his introduction of this Bill, thereby highlighting the inconsistencies obtaining in our system. Nonetheless much more thought must be given to the whole matter and much more money made available for the implementation of appropriate legislation. For example, with regard to free legal aid the office of the Director of Public Prosecutions will have to be allocated more staff. Indeed a time limit must be set for this objective so that if any defendant is not happy on the day of sentencing they can have the matter rectified within 28 days rather than have to await public perception and endure a whole series of articles being written by interest groups to ensure that justice is clearly seen to be done.
We must all thank Deputy Jim O'Keeffe for highlighting this issue. The other people who are becoming very disillusioned with the present system are the members of the Garda Síochána. They apprehend people, bring them into court and discover that, perhaps for some small technical reason, or the mood of the judge on the day, there is a derisory sentence or punishment meted out or the case is dismissed altogether. It is my belief that that is leading to much malaise on the part of the Garda Síochána, particularly when they see a hardened criminal walk out of court, put his tongue out at them, thumb his nose at them or whatever when one's reaction is to give summary justice on the spot. However that is not to be recommended.
 I am particularly concerned at the heinous crimes perpetrated recently such as the sexual abuse of women, young children, old people and the more and more numerous attacks on old people who are being brutalised and, in some cases, sexually abused. The fact that many of the perpetrators of such crimes are freed within a short period horrifies me. I read recently of a number of cases in Britain where the perpetrators of sexual crimes, on release, committed the same crime within a short period; one recently after serving 21 years for savage attacks on people who committed three similar savage offences within three days of being released.
I hope that the Law Reform Commission will deal with this matter of inconsistency of sentencing as a priority, above all other matters, bringing their knowledge and wisdom to bear on the subject. We must ensure at all times that the public do not lose confidence in the courts, because I believe that is happening.
Again I compliment Deputy O'Keeffe on the introduction of this Bill but hope that a proper Bill will be brought forward to cover all aspects of this matter.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: Do I take it that Deputy Davern is indicating that he wishes to share his time?
Mr. Davern Mr. Davern
Mr. Davern: I gave the Chair a bookie sign earlier that I might share my time with Deputy Andrews.
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: Speechless messages have very little importance in this House. Deputy Andrews will have 19 minutes.
Mr. Andrews Mr. Andrews
Mr. Andrews: Déanfaidh mé mo dhícheall mo smaointe ar an mBille tábhachtach seo a chur os comhair na Dála.
I thank my long-standing parliamentary friend for having allowed me part of his time to speak on this Bill. While not a paragon of perfection myself in parliamentary or other terms, I was fascinated to hear Deputy McGahon, a  Deputy for whom I have great regard, range beyond the provisions of the Bill before us for almost the entirety of his contribution. Like Deputy McGahon I have been guilty of that in the past and no doubt will be in the future, so my remarks are not meant as a criticism of him. In any parliamentary democracy there is place for all types of views.
I listened to Deputy McGahon with great attention. I would be concerned about his “hang 'em and flog 'em” attitude. I am not certain that that is the type of attitude appropriate to the administration of justice on the one hand or the administration of the law on the other. That is not in any way to suggest that Deputy McGahon was not entitled to make the type of remarks he made; of course he is. I want to place on record that I would not necessarily agree with the thrust of all his sentiments.
With regard to the death penalty I see very little reason for maintaining on the Statute Book a law that is not implemented. The death penalty has not been carried out here for many years. For many reasons, I believe the death penalty should be removed from the Statute Book. The death penalty itself is a crime committed by the institutions of State against a criminal and obviously is based on the old biblical expression of an eye for an eye and a tooth for a tooth. Equally, I am not certain that that is a good principle to apply in the administration of justice.
I can understand the Garda's attitude to it as, to be fair to them, they have, since the foundation of the State, served this nation very well. I have been and always will be supportive of them and recognise that effectively they are in the front line in protecting society, as witnessed by the manner in which they dealt with an attempted bank robbery in County Wexford in the recent past. I applaud them for the manner in which they dealt with that bunch of gangsters who may have been attempting to commit a crime in the pursuit of some perverse philosophy which they would describe as republican. I would not go  along with the scribes who in their reportage on the capture of these criminals almost made it look like a crime on the part of the Garda. Who fired the first shot appears to be the kernel of the stories on that piece of heroism on the part of the Garda, and I reject this. The Garda are entitled to go in and deal with the issue as they see it based on their own judgment and expertise and should be applauded for what they did on that occasion.
I was critical of Deputy McGahon for going outside the range of the Bill, and I am falling into the very same trap. The Bill before us seeks to amend the law relating to criminal procedures so as to provide for the review of sentences. What this means in plain English is that lenient sentences ought to be reviewed. In the recent past in connection with some other issues about which I am concerned I came across the Official Report of the debate in the British House of Commons of Tuesday, 26 February 1988 which includes a heading “Standing Committee H of the Criminal Justice Bill (Lords)”. It was published by Her Majesty's Stationery Office in London at the price of £3.70. I commend Deputy O'Keeffe and any other Deputy in Opposition in this House — this should also apply to some of us on the Government back benches — who go to the trouble of bringing Bills of this nature before the House. I sometimes fault Governments for not accepting Bills of this nature, well intentioned as they are. It is an unfortunate fault of the democratic process that it does not work both ways, in that what is put up by the Opposition is knocked down by the Government and vice versa. Perhaps if our democracy was based on consensus we would achieve far more in this House.
I have no doubt Deputy O'Keeffe will respond to me and respond critically if I am wrong but from my perusal of the parliamentary debates in the British House of Commons it appears that this Bill is lifted from the Criminal Justice Act in England. I do not use the word “lifted” in any derisory way but it appears that it is partially, if not entirely, copied  from that legislation. Again, that is not a bad thing in itself but I would suggest to Deputy O'Keeffe, well intentioned as he was in bringing forward this legislation, that what is good for English law — and I do not refer to the law in the United Kingdom as there are two different streams of law, English law and Scottish law — is not necessarily good for Irish law.
That leads me on to the central question on the Bill itself, that is the question of leniency in sentencing. I would suggest to Deputy O'Keeffe and to those who support him that what is at issue is not so much leniency as consistency and an evenhanded application of sentences. That is one of the problems which concerns the people at this time. Deputy Davern and others have adverted to the fact that the Law Reform Commission are presently engaged in a review of sentencing. I understand from a number of speeches made during this debate that this exercise was commended to the Law Reform Commission by a Government which Deputy O'Keeffe supported. Again, that is a very hopeful development. The Law Reform Commission have repeatedly produced excellent reports but the problem is that these reports continue to gather dust in whatever Department or Departments have the responsibility to implement them. I note that the Minister, towards the end of his speech, in response to Deputy O'Keeffe, indicated that when the Law Reform Commission complete their review he will act expeditiously on the report. As I said, the public are concerned about the evenhanded application of sentences and consistency in sentencing.
I should point out that I am faced with a conflict of interests and would like to declare it. I have been a practising barrister for almost 30 years. I am a civil lawyer and do not work in the criminal courts. As I say, I have an interest in the law and would like to put this on the record in advance of any support I might give to remarks made either inside or outside the House about the Bar or the  legal profession generally. I will deal with that matter shortly.
In how many cases have over-lenient sentences been handed down during the past 12 months to two years? I think the House will find that such cases are few and far between and not of great significance. The Minister, as did Deputy McGahon, referred to that tragic case where the jury acquitted one of the individuals of murder but, again, this decision was reached by a jury of ordinary lay people, gnáth-dhaoine, yet it gave rise to dissatisfaction. That is the kind of lenient application of sentences that gets the headlines and brings sentencing into disrepute in the public mind. In this instance the conclusion was not deliberated upon by a judge but rather by a group of 12 lay people who are part of the jury system. The court cannot be faulted for that decision. It did, however, give rise to a considerable amount of public concern and it is that type of publicity which affects the public mind in the context of the harshness or leniency of sentencing. The logic seems to be to introduce a Bill that in some way allows an appeal against the leniency of a sentence if, in the final analysis, the court system can find it in its heart to do this, but the Martin committee might deal with that.
There is also the question of the principle of double jeopardy. While I agree that the question itself relates to acquittal questions generally, nevertheless a person could face an appeal against the sentence. I am not certain it is a good thing that a person might have to face the possibility of his sentence being appealed against. It would appear to me to be a bad principle in law that a prosecution, dissatisfied with the sentence, could seek to have it further increased.
Well intentioned as Deputy O'Keeffe's Bill is, we should be careful about interfering with the due process of law. We have an independent Judiciary and Article 35 of the Constitution says that it is to be independent in the exercise of its judicial functions, subject only to the Constitution and the law. In that regard there has been much criticism of recent  decisions of the Supreme Court but that debate is for another day. I have already said well in advance of anything that might have been said about it, that I believe that the 1987 Extradition Act should be given a chance before we engage in seeking loopholes in it.
Those people who are critical of the Supreme Court in the exercise of its functions should be careful about that point and also about the suggestion made in the recent past that in some way Ireland, and the South in particular, has become a haven for terrorists. These are issues which I will deal with on another occasion but we should be careful on the one hand about what we say about the Supreme Court which has an independent function and, on the other hand, about screaming that Ireland is becoming a haven for terrorists. It is nothing of the kind.
There is one other point which my constituency colleague mentioned, that is, the training of judges. There is no need to train judges here. We are a nation of only 3.5 million people and whilst there is a rising crime rate, nevertheless crime remains the same. There is a great training ground for the legal profession both in the arena of which Deputy O'Keeffe has long been a respected practitioner and in that in which I practise, the Bar. It is undoubtedly a privilege for me to be a member of the Bar. My own view is that they have come in for unnecessary and harsh criticism in the recent past. In that regard, anyone who wishes to dismantle the Bar can do so without my co-operation.
I will certainly be keeping a close eye on the Restricted Trade Practices Report which is upcoming and will be published in the not too distant future, but its contents appear to be leaking gradually to the public and may be to the disadvantage of the Bar. As a practising barrister with a dual role I would be loath to interfere with an institution which has served this State well.
I conclude by thanking Deputy O'Keeffe for giving me the opportunity to speak on this no doubt important proposal.  I want to assure him that, while I do not condemn it, I do not feel I can support it in the circumstances.
Mr. J. Higgins Mr. J. Higgins
Mr. J. Higgins: One of the unique things about this major legislation has been the degree of unanimity in relation to its basic thrust. If one sifts through the sentiments from the other side of the House one will see that there is a basic agreement with the points being put by Deputy O'Keeffe and other Members in its support.
Deputy Davern, by quoting case histories, implied that this measure was long overdue. Deputy O'Keeffe was quite specific. He was not talking about giving the Director of Public Prosecutions the right to appeal every case. It is not the intention that the Director of Public Prosecutions would have the right to refer trivial cases to another judge. Deputy O'Keeffe was talking about grave matters where there seemed to be serious errors of judgment. It was refreshing to hear Deputy Davern agree with him and cite the understandable despondency of gardaí who, having gone through the process of arraigning and charging people are then subjected to the devastating psychological blow of having something thrown out of court for what do not seem like good grounds.
I wish the Minister would listen to Deputies like Deputies Davern and Andrews. Deputy Andrews said quite clearly that referring the matter to the Law Reform Commission is not an appropriate way to deal with this problem. They are a worthy body of men and women, learned and experienced and have produced long and voluminous reports which unfortunately, clutter the shelves of the Law Library, gather dust and are not acted upon.
There have been misjudgments and there will continue to be, but thankfully not many. One misjudgment, however, is sufficient to make us insist that this measure suggested by Deputy O'Keeffe be looked at. We are fortunate in that we have an excellent Judiciary. They are independent and impartial and constitutionally guaranteed as such. To err  is human, however. To set people up in God-like fashion with what amounts to infallibility as to their decisions does scant justice to the recognition that people err and will continue to do so.
The purpose of the courts is to dispense justice. There have been wrong decisions and we are daily treated to examples of how the law works effectively. We are also occasionally treated to elaborate illustrations of how the law does not work as it was intended. One can imagine the physical and psychological scars this can leave on a victim. One can imagine how a person feels who has been subjected to physical and psychological violence, who has been doubly sinned against, when the offender walks free from the court because of the manner in which the case had been presented, or because of the failure of counsel to make some salient point of law in court, or because of what could be termed a misjudgment on the part of the judge. All that Deputy O'Keeffe is asking is that in cases of grave matter, the Director of Public Prosecutions, having evaluated the facts of the case, would have the right to refer the matter to a colleague of the judge in question. Having listened to some of the remarks of Members on the other side of the House I am convinced that some people are more concerned with the veneer and ego of the Judiciary than with the victim's right to natural justice.
Dáil Éireann 398 Private Members' Business. Criminal Justice Bill, 1990: Second Stage (Resumed).