The reforms being contemplated by the Government in response to the Sheedy case seem to fall into two categories - changes in court practice and procedure (including new measures to enhance judicial accountability) and the establishment of a parole board.
In fact, a great deal has already been accomplished under the first heading, thanks to the Working Group on a Courts Commission which was chaired by Ms Justice Denham. This must rank as one of the most effective, creative and hardworking committees established in the public sector in recent decades. Its major recommendation, the establishment of a Courts Commission, has already been implemented.
The Commission and its new chief executive have a very ambitious plan of action, which includes tracking civil and criminal cases through the courts system using the latest technology. Given the necessary resources, this should eventually solve many administrative problems, including some of those which manifested themselves in the Sheedy case.
The good news, therefore, is that a system is now in place for the development and implementation of further improvements in the administration of the courts and the processing of cases. All the indications are that within the next decade technological advances will radically change the manner in which the judicial system operates.
Indeed, the role of lawyers is likely to change also, as more and more legal advice becomes available on the Internet and other computer-based sources. All the more reason to have a body like the Courts Commission to plan strategically to meet the challenges these changes will bring.
The most welcome news to emerge so far in the Government's response to the Sheedy case is that a formal parole board is being planned. Its function would be to develop and implement a structured method of granting early release to prisoners.
At present all prisoners, other than life prisoners and those serving less than one month, have a statutory entitlement to a quarter remission of their sentence if they have been of good behaviour. A prisoner may lose and regain remission in the course of his sentence. In addition, the Government has a statutory power to grant early release of a prisoner at any time after the sentence begins. The one group of prisoners who are not eligible for such release are those sentenced to mandatory minimum terms of 40 years' imprisonment for what was formerly capital murder.
The Government's power to grant early release is useful and should be retained. It allows for compassionate release in the case of illness, bereavement or other extenuating circumstances. The problem is that it can also be used in a haphazard fashion for the sole purpose of relieving prison overcrowding. As a result, many prisoners are released without any advance planning or preparation. It is small wonder that many find themselves back in prison again fairly quickly.
In 1989 the government set up a sentence review group, but it was never given a statutory foundation. This group appears to have functioned well, but it has been confined to dealing with prisoners who have served seven years.
The real need is for a system to deal in a structured and systematic way with prisoners serving less than seven years, and they constitute the great majority of the prison population. Prisoners in this group have tended to be granted full and temporary release on an ad hoc basis.
It was partly in an effort to deal with this problem that the courts developed the reviewable sentence. They hoped that by setting a review date the prisoners would be detained for at least that length of time and might, therefore, get some assistance or treatment. Unfortunately, the reviewable sentence was never provided for by legislation or subjected to formal rules.
Members of the Oireachtas must take their share of the blame for the failure to regulate the reviewable sentence, especially in light of the critical comments made by the Law Reform Commission in its Report on Sentencing. Two senior judges and a county registrar have now paid the price for that political failure.
The establishment of a parole board would allow for the systematic review of all prison sentences - and for all prisoners to apply for a hearing before the board. This would be far preferable to the present system of reviewable sentences, where some offenders are given review dates by the courts but most are not. In other words, a formal parole system would result in discretion on the release of prisoners being shifted from one end of the spectrum (the imposition of sentence), to another (a point at which a certain portion of a sentence has been served).
A parole board would bring other advantages as well. First, under our constitutional scheme, a judge's sole function is to select and impose sentence. The implementation of sentence is a matter for the executive branch of government, which could obviously discharge its functions more effectively and fairly if it had the advice of a professional parole board.
Secondly, assuming the board had the appropriate expertise, it would be in a far better position than judges to evaluate the progress made by offenders in prison and the safety of releasing them back into the community.
It is vitally important that membership of the parole board should be confined to those with expertise in relevant areas. It should include psychologists, social workers, criminologists and probation experts.
Member ship must not be seen as a means of rewarding political support, which has often unfortunately been true of prison visiting committees. A parole board will not work unless all of its members are both expert and independent.
It is unfortunate that it took a case as controversial as Sheedy's to awaken the Government to the need for these developments, but perhaps it is better late than never.
Tom O'Malley lectures in law at NUI, Galway