CHECK AGAINST DELIVERY
Criminal Justice (Suspended Sentences of Imprisonment) Bill 2016
Second Stage Speech
Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, TD
24 January 2017
A Cheann Comhairle, Deputies,
I am very pleased to have this opportunity to introduce the Criminal Justice (Suspended Sentences of Imprisonment) Bill 2016 to this House. It is a relatively short and technical Bill but an important piece of legislation. Its primary purpose is to address Mr. Justice Moriarty’s High Court judgment of 19 April last which found certain provisions of section 99 of the Criminal Justice Act 2006 to be unconstitutional. That section provides for the suspension and subsequent revocation of prison sentences. The Bill was initiated in the Seanad and completed its passage through that House on 30 November. I am pleased to say that it received general support there, with the need to remedy the legislative deficiency broadly recognised.
Suspended sentences are an integral part of the Judicial sentencing regime, indeed of the criminal justice system in general. They can be used as an alternative to the imposition of a custodial sentence where the court considers that the person might benefit from a second chance and that justice might be better served with the imposition of a suspended sentence. Suspended sentences are a valuable sentencing mechanism for the courts - a deterrent to the commission of further offences - since the threat of the original prison sentence remains. A suspended sentence is imposed for a certain time period and is subject to a number of conditions. The primary condition is that the person must “keep the peace and be of good behaviour” – a breach of this condition can result in automatic revocation of the suspended sentence.
The statutory regime for the imposition and revocation - essentially, the activation - of suspended sentences is provided for in section 99 of the Criminal Justice Act 2006. The High Court has, however, found certain provisions of section 99 - subsections (9) and (10) - to be unconstitutional and these provisions have been struck down. These subsections provide that a person who is subject to a suspended sentence and subsequently convicted of another offence is, before sentencing for that subsequent offence, automatically returned to the court which made the order imposing the suspended sentence for revocation of that order.
The difficulty identified by the High Court is that the person concerned does not have the opportunity to appeal the second, “triggering” offence before the case is referred back to the revocation court, resulting in differing treatment so far as the rights of appeal are concerned. This means that a person could serve some or all of a revoked suspended sentence because of a second offence, the conviction for which may be quashed on appeal. It is necessary, therefore, to amend the legislation to provide that an appeal may be taken in relation to a second, triggering offence, before revocation of the suspended sentence is considered by the revocation court.
An alternative mechanism provided for by subsections (13) and (14) is currently being used on a case-by-case basis, pending enactment of this amending legislation, which will restore the automatic court-driven revocation process. These alternative provisions allow a member of the Garda Síochána, the Governor of a prison or a Probation Officer to apply to the court for a hearing to revoke a suspended sentence where a breach of its terms has occurred. While this alternative mechanism ensures that suspended sentences may still be revoked, it is important from a procedural point of view that the provisions which have been found to be unconstitutional should be revised and replaced so that the system of automatic revocation of suspended sentences can be restored.
The implications of the High Court judgment have been considered in consultation with the Attorney General and this amending legislation has been prepared in order to address the particular difficulty identified so that procedures relating to suspended sentences can operate as efficiently and effectively as possible. The Bill also deals with a number of related matters.
I would now like to take the opportunity to outline the main provisions contained in this short Bill before the House:
Section 2 provides for amendments to section 99 (Power to suspend sentence) of the Criminal Justice Act 2006 as follows -
Section 2(c) provides for the insertion of subsections (8A) to (8H) after subsection (8). Subsections (8A), 8(B) and (8C) replace subsections 99(9) and 99(10) – the subsections which were struck down.
Paragraph (8A) provides that, where a person commits an offence – a “triggering” offence - during the period of a suspended sentence and is subsequently convicted of that offence, the court concerned will, after imposing sentence for the triggering offence, remand the person in custody or on bail to a sitting of the court that imposed the suspended sentence no later than 15 days after the remand, or where there is no sitting of that court within the 15 day period, to the next sitting of that court. If, for whatever reason, the court to which the remand is made does not sit on the date of remand, the person will be remanded to the next sitting of that court held after that day. This provision ensures that a person will be remanded as soon as possible, once sentence for the triggering offence has been imposed, to the revocation court to have the matter of the suspended sentence dealt with.
Subsection (8B) clarifies that the remand process provided for in subsection (8A) applies following conviction for a triggering offence once proceedings are instituted against the person concerned within a reasonable timeframe following commission of the offence.
It may be useful, at this point, to outline the most significant differences between subsection 99(9) of the 2006 Act and the revised subsections (8A) and (8B).
Firstly, the requirement that the conviction for a triggering offence be handed down during the period of the suspended sentence has been removed. A second key difference between subsection 99(9) and the new amending subsections is the bringing together of conviction and sentence for the subsequent offence. This will allow a person to lodge an appeal against a conviction or sentence for a triggering offence prior to determination of the revocation issue. This also means that the court, in considering revocation of the previously suspended sentence, will be aware of the sentence imposed for the triggering offence and will, therefore, be in a better position to assess the gravity of the breach. A third important difference relates to providing a more workable and realistic time frame for consideration of revocation of a suspended sentence. Remand to a sitting of the court will now take place no later than 15 days after such remand, or where there is no sitting of that court within that 15-day period, to the next sitting of that court.
The notable difference between subsection (8C) and the original subsection 99(10) which it replaces is that the revocation proceedings will be adjourned pending determination of any appeal process. The adjournment of the proceedings to consider revocation of the suspended sentence ensures that the procedural difficulty identified by the High Court is effectively dealt with by allowing a person to appeal conviction or sentence for a triggering offence before returning to the revocation court to have the matter of the suspended sentence dealt with. Revocation of the suspended sentence will not be considered until such time as the appeals process in relation to conviction or sentence for the triggering offence is complete.
Subsection (8E) sets out what is to happen when an appeal against conviction or sentence is withdrawn or abandoned while subsection (8F) sets out what is to happen when the appeals process is final. Where the appeal is allowed, the revocation proceedings will be dismissed but in all other cases, the revocation court will proceed to consider revocation of the suspended sentence.
Subsection (8G) places an obligation on the person concerned to appear before the revocation court whenever required to do so by that court.
Subsection (8H) makes it clear that an appeal against conviction or sentence for the triggering offence can be by way of rehearing, case stated (that is, on a point of law) or otherwise.
Section 2(e) substitutes subsection 99(11) and deals with the sequence in which the revoked suspended sentence and the sentence imposed for the triggering offence are to be served.
In line with the revised procedure in subsection (8C) whereby the sentence for the triggering offence will be handed down before imposition of the revoked suspended sentence, paragraph (11)(a) provides that the sentence for the triggering offence will be served before the revoked suspended sentence.
Paragraph (11)(b) clarifies, however, that this sequence will not apply where a person receives a fully suspended sentence for the triggering offence - as in this case there would be no triggering sentence to serve.
A new subsection (13A) has been inserted which gives the Director of Public Prosecutions a power, similar to that of the Garda Síochána, the prison Governor and the Probation Service in subsections (13) and (14), to make an application to a court to consider revocation of a suspended sentence where a condition under subsection (3) has been breached. This provision will strengthen section 99 by providing for an additional subsection (13) or (14) type referral in order to ensure that any breach of a condition of a suspended sentence is captured by the section, as is the policy intention.
Section 2(j) provides for a new subsection (18A) which sets out the procedure in relation to the remaining part of a suspended sentence when only part of the sentence is revoked. In this case, a further order may be made suspending the balance of that sentence. In this way, the section 99 procedure in relation to revocation of a suspended sentence will also apply to the part of a suspended sentence which has not been revoked.
Two new subsections are inserted after subsection (19). Subsection (19A) takes account of the situation where a person has committed a number of offences and is subject to a number of sentences which are to be served consecutively. Subsection (19B) ensures that District Court sentencing provisions are maintained and that the maximum term of imprisonment which can be imposed by the District Court in respect of sentences passed at the same time cannot exceed 2 years.
Three new subsections are included after subsection (20). Subsection (21) clarifies that a consecutive sentence which is to be served following a part revoked sentence should commence immediately following the expiry of the custodial period of the part revoked sentence.
Subsection (22) deals with sentences on appeal and provides that where a suspended sentence is imposed by a court on appeal from another court, the lower court from which the appeal was taken is the court to which the person will be remanded in order to have revocation of the suspended sentence dealt with.
Section 3 of the Bill makes it clear that where subsections 99(9) and (10) are referred to elsewhere in legislation, they are replaced by subsections (8A), (8B) and (8C).
Section 4 is a standard provision citing the short title of the Bill and providing for its commencement.
As I have already outlined to the House, this amending legislation is a necessary response to the High Court finding of unconstitutionality in relation to some of the suspended sentencing provisions. The Bill addresses the difficulty highlighted by the Court and revises the procedure in order to ensure that the suspended sentencing system can operate efficiently and effectively once again.
I trust that Deputies appreciate the need to bring forward this amending legislation and I commend the Bill to the House.