Home > Seanad Eireann debate - Criminal Justice (Amendment) Bill 2021: Committee Stage - SECTION 4.

[Oireachtas] Seanad Eireann debate - Criminal Justice (Amendment) Bill 2021: Committee Stage - SECTION 4. (10 Nov 2021)

External website: https://www.oireachtas.ie/en/debates/debate/seanad...

Senator Frances Black: I move amendment No. 1:

In page 4, between lines 9 and 10, to insert the following:

“(b) by the deletion of subsections (4), (4A), (5) and (6),”.


The purpose of this amendment is to remove presumptive minimum sentencing from the Firearms Act 1925. I am here on behalf of my Civil Engagement Group colleague, Senator Ruane. She spoke last week of an opportunity here to create a fairer and more caring judicial system, one that is built on the idea of justice for rehabilitation. For the Minister of State's part, he recognises the importance of creating such a judicial system. In order to achieve a system which best supports rehabilitation, it is important that we empower the Judiciary to sentence on a case-by-case basis, particularly in respect of firearms and drug offences, which are often highly circumstantial. By accepting this amendment to section 4, the State would have the opportunity to support the Judiciary to make the sentences circumstantial and judges would thus be empowered to make decisions that would best serve the rehabilitation of the offenders in front of them, as well as society at large, rather than simply making decisions based on arbitrary minimum sentencing legislation. After all, the laws we write are often quite simple. As the Ellis case has shown, however, their application in the context of the complexity of life is hard. By removing subsections (4), (4A), (5) and (6) from section 15 of the Act, we offer the accused and, subsequently, society as a whole a fairer and, crucially, a more understanding justice system. By removing these subsections, we would remove the legislation binding judges to pass a presumptive minimum sentence of ten years in prison. Instead, we would implicitly insert an opportunity for judges to offer sentences which they believe will best rehabilitate the offender.


Amendment No. 6, which relates to section 6, seeks the removal of presumptive minimum sentences, but this time, from the Misuse of Drugs Act 1977. Even more so than the two Firearms Acts, which the previous two amendments addressed, convictions under the Misuse of Drugs Act 1977 are, by their nature, highly circumstantial. In order to hand down a sentence which respects these circumstances, a judge must be free from the binding of the presumptive minimum sentencing legislation set out in section 27 (3C) and (3D). Once again, the legislation uses the exceptional circumstances threshold to determine when it is not necessary to hand down the presumptive minimum sentence of ten years' imprisonment. As noted by prominent legal academic, Thomas O'Malley, this is a remarkable severe punishment for what is, in essence, a non-violent offence. In practice, it means that those convicted of possessing drugs for sale or supply with a street value marginally in excess of €13,000 will be open to prosecution under this presumptive minimum sentencing.


As I noted at the beginning, cases concerning the misuse of drugs are highly circumstantial. It is for these reasons that the Law Reform Commission recommended, in their 2013 mandatory sentences report, that subsections (3C) and (3D) be removed because they bind judges to restrictive minimum sentencing legislation in cases which require nuance and understanding in order to deliver a fair and correct sentence. We know, for example, that those who are prosecuted in under the 1977 Act are usually individuals whose involvement in the drugs trade comes about through circumstance - individuals for whom any minimum sentencing legislation is unlikely to serve as a deterrent. I therefore urge the Minister of State to accept these amendments and allow our Judiciary to sentence offenders on a case-by-case basis, to sentence without the restrictive binding of minimum sentencing legislation in order to deliver sentences that are not just punishments, but instead, paths to rehabilitation.


Amendment No. 8 relates to section 8. This amendment seeks to remove section 25 of the Criminal Justice Act 2007, and subsequently, the deletion of section 8 of the Bill. The amendment is proposed with the aim of allowing those convicted under both the misuse of drugs and the firearms legislation access to the possibility of temporary release. To the Minister of State's credit, he flagged his concern with this section when Senator Ruane brought it to his attention last week.

It is important to ground this submission in the details of the Ellis case, which brings us all here today. Under the current legislation, with section 25 of the Criminal Justice Act 2007 intact, should Mr. Ellis be subsequently imprisoned, due to his suspended sentence being overturned the judge would be barred from allowing him temporary release to continue undertaking the credible measures to rehabilitate himself, which ultimately led to the delivery of the suspended sentence in the first place.


If the Minister of State truly believes in building a justice system that is rehabilitative rather than simply punitive then he will take this opportunity to remove section 25 and allow offenders access to the rehabilitative supports available through temporary release.

Item Type
Dail Debates
Publication Type
Drug Type
Substances (not alcohol/tobacco)
Intervention Type
Crime prevention
10 November 2021

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