The Minister for Justice, Mr McDowell, should tread warily if he introduces legislation to take some sentencing discretion out of the hands of judges. Pressure from the media and sections of the Garda Síochána, arising from lenient penalties imposed in certain cases, should not dictate sentencing policy. And while there is a need for judges to deal severely with certain offences in order to protect society, the establishment of a mandatory sentencing regime may not be the optimum solution.
The Constitution is very clear on the separation of powers between the executive and the judiciary. And the system, in spite of certain flaws, has served the State well. Following the O'Flaherty controversy, the need to establish a code of judicial ethics, along with a system of oversight and enforcement, was recognised and supported by the judiciary. Such reform would allow for greater uniformity and discipline amongst judges while encouraging the establishment of a more uniform sentencing policy. Unfortunately, such legislation attracts less media attention than mandatory sentencing and the proposed Bill has yet to be approved by the Cabinet.
There is no doubt that the establishment of mandatory prison sentences for certain drug offences, in 1999, has given rise to an element of friction between the executive and the judiciary, because of a perceived interference in sentencing policy and a blurring of the separation of powers. Rather than the 10-year jail sentence specified for persons found in possession of €12,500 or more worth of drugs, judges have consistently exercised the discretionary criteria set out in the legislation to impose lesser periods of incarceration.
Mr McDowell told the annual conference of the Association of Garda Sergeants and Inspectors this week that he will reduce the level of discretion judges may exercise in sentencing such offenders because he believed they had been too lenient with serious criminals. An equally tough regime will be introduced in relation to firearms offences where, Mr McDowell said, dissident republicans had been granted bail against the advice of a senior Garda and had then re-offended. This had happened in spite of legislative changes following the bail referendum.
The tension that now exists between the judiciary and the executive is unlikely to be resolved if the Government seeks to enforce its will in relation to mandatory sentencing. The threat posed by gun-toting criminal gangs and dissident republicans must, indeed, be confronted. But creative co-operation between the executive and the judiciary in this common purpose should be the preferred approach.