The Minister for Justice has surprised legal observers by seeking to further curtail the discretion of the judiciary in sentencing, writes Carol Coulter,Legal Affairs Correspondent
Michael McDowell told the Association of Garda Sergeants and Inspectors that he wants to change the law on drug-dealing to ensure that the 10-year mandatory sentence is handed down by the courts for possession of drugs worth more than £10,000 (€12,500).
The Minister for Justice also wants to introduce mandatory sentences for firearms offences and a more restrictive interpretation of the bail laws. He has also promised 1,200 more prison places. What has surprised many observers is the lack of research on the need for these initiatives.
The sentence for drug-possession is one of the few mandatory sentences on the statute book. Normally the law spells out what a maximum, not minimum, sentence should be for specific offences, depending on whether they are tried in the District Court or in the Circuit Court on indictment. The big exception is murder, where the mandatory sentence is life imprisonment. However, the Chief Justice, Mr Justice Keane, recently expressed the view that the sentence here should not be mandatory, but up to judicial discretion, a view supported by the President of the High Court, Mr Justice Finnegan. Mr Justice Carney, who presides over the Central Criminal Court, put forward a different version of a similar proposal, suggesting that the distinction between murder and manslaughter be abolished, and the seriousness of the offence be reflected in the sentence.
Mr McDowell has poured cold water on these suggestions, and they are not likely to be taken up by any political figure.
There is a long-standing tension between the judiciary and politicians over sentencing. This has also surfaced recently in the UK in open disagreement between the home secretary and the chief justice. Politicians like to show they are tough on crime by promising ever heavier penalties for crimes that are attracting attention at a specific time, never more so than on the eve of elections. Judges like to insist they are independent of popular opinion, and that they use their discretion to hand down sentences that are proportionate to the degree of the accused's guilt.
This is a constitutional principle in this State, according to sentencing expert Prof Tom O'Malley of the National University of Ireland, Galway. "It is a constitutional requirement that sentencing be proportionate to the guilt of the accused," he said. "It is very hard to square that with this drive towards mandatory sentences.
"First, we should have a proper investigation of what is happening in the courts. The Minister might be pleasantly, or unpleasantly, surprised, depending on what he wants to hear. He might find he was trying to address a problem that wasn't there.
"The courts are dealing with drug dealers very seriously indeed. They are getting heavy sentences, if not 10 years." He said the 1999 Act was open to criticism in that it set the bar for the 10-year sentence in a very arbitrary way. "Who decides on the value of the drugs? If a garda in Leitrim decides that they are worth £9,000, and the garda in Dublin decides they're worth £10,000, the sentence can be very different."
A senior counsel who specialises in criminal law said the 10-year sentence was normally not imposed because those being arrested were not serious drug-dealers. "The penalty applies equally to heroin and cannabis. It is totally blind, anyone with £10,000 worth or more is deemed to be a drug-dealer.
"But 98 per cent of those caught are low-grade couriers or addicts. Most of these people come to court with just the shirt on their backs.
"There are three criteria for reducing the mandatory sentence: material assistance to the gardaí, an early guilty plea, and personal circumstances. These considerations would bring it down to seven or eight years, which is what it was anyway.
"Everyone is pleading guilty now, and the gardaí have said [this system] has brought an intelligence bonanza.
"This was a very, very powerful tool from the point of view of judges who would have no hesitation in imposing the 10-year sentence if the accused was not a pathetic person off a flight from South Africa or a wan heroin addict." If there is no reduction in sentence, it is difficult to see why a courier who is caught should co-operate with gardaí or plead guilty.
The issue of mandatory sentencing raises wider issues about the independence of the judiciary, and the value placed on their discretion.
"Judges are required under the Constitution to administer justice," said Prof Finbar McAuley of University College Dublin. "The punishment must be proportionate to the wrong committed, and you must factor in the degree of guilt." Mr Donncha O'Connell of NUI Galway agrees. "The judges must be able to exercise discretion. You do need guidelines, but you can leave guidelines to the Court of Criminal Appeal, which has already been laying down principles that should apply in sentencing. You could legislate if it failed to do so.
"Having a mandatory minimum sentence is very inflexible, and leads to higher rates of imprisonment, which the Minister had implicitly acknowledged by proposing to increase the prison population by over 1,000. A measure of the success of your criminal justice system is the reduction of your prison population." This view is shared by Dr Ian O'Donnell of the Institute of Criminology in UCD. "What is proposed is a massive jump. When this Government first came in in 1997 we had 68 prisoners per 100,000 population. This will bring it up to 120 per 100,000.
"Yet between 1995 and 2000 property crime fell. It will bring us close to the top of the EU league for imprisonment. All the reports on this say you can't determine what number of prison places you need until you've exhausted alternative sanctions." Prof McAuley said the issue of sentencing raises the need for a codification of the criminal law, which is currently being examined. He is a member of the expert group, set up a year ago by Mr McDowell to examine the codification of criminal law, which was promised in the Programme for Government. It is due to report soon.
"With codification you actually create a moral hierarchy of offences and punishments which the naked eye can see," he said. "So if you up the maximum sentence for a specific crime by three or four years, it puts it out of kilter with everything else. The situation at the moment enables the legislature to be blown along by a gust of public opinion and then legislate on whatever the moral panic is about at the time.
"Our conference earlier this year was told, 'Not every offence can be the worst offence'. You have to have a clear hierarchy of offences and punishments."