Irish Penal Reform Trust Annual Lecture 16th September 2011
‘Squaring the Circle: Penal policy, Sentencing offenders, and Protecting the Community’
CHECK AGAINST DELIVERY
Good evening, ladies and gentlemen:
I want to thank the Irish Penal Reform Trust for this opportunity to reflect as Minister for Justice, Equality and Defence on aspects of future penal policy and practice. Knowing that it is a topic that can become easily mired in emotive and extreme rhetoric, I value all the more the researched and reasoned contribution of the Trust to public debate on penal questions. In this paper this evening, I want to point out that I will be raising questions about the rationale of punishment and addressing developments in the prison system which I hope will stimulate our subsequent discussion. A particularly interesting question is the extent to which both the public can be protected from criminality and the rights of prisoners respected or whether this is a futile attempt to square the circle.
In this context, I believe it appropriate to say something about my perspective and my role as the Minister for Justice, Equality and Defence. As Minister for Justice and Equality I have a solemn responsibility to ensure that we have an effective and responsive criminal justice system that affords the maximum protection possible to the community in general from criminality, is responsive to changing circumstances and facilitates those who reside in and visit this State going about their lives in safety and without fear of suffering physical injury or financial loss by the illegal acts of others. This obligation is essentially about protecting the rights of law abiding citizens and others in the State but my rights obligations, in a Department which includes an active human rights agenda, include also ensuring that the rights of those charged with offences and of those convicted are respected and that the State complies with its human rights obligations pursuant to our Constitutional, European and other international law obligations. In protecting prisoners rights I also cannot be blind to the reality that those who offend and whose criminality impacts on the lives of others and that they cannot be given a free pass. Accordingly, it is important to acknowledge that the punishment of offenders is an essential part (or is part and parcel) of the criminal justice architecture.
Bearing in mind the principles I have articulated it is, of course, right in a constitutional democracy governed by law and committed to human rights principles that we keep the human rights of offenders in view when we shape or reshape our penal policy and practice. As the great American judge Robert Jackson vividly wrote: ‘We can afford no liberties with liberty itself’. [United States v Spector 343 US 169, 180 (1952).] It is striking that the 1950 European Convention on Human Rights has had a wide-ranging effect on penal policy and practice. And the European Committee for the Prevention of Torture, Inhuman and Degrading Treatment – the ‘CPT’ - is contributing immeasurably to improving prisons conditions in Europe. Political integrity dictates that we should comply with the human-rights principles of international conventions to which this State is a party and with which we expect other States to comply. To do otherwise, would be rank hypocrisy. I am not suggesting that our concern to protect the community on the one hand and our obligation to respect prisoners rights on the other hand should result in a crude tug of war or that the two are entirely irreconcilable. I am saying that since policy-making must keep faith with these concerns, our perspective on penal policy is a morally complex and nuanced one.
Ireland has one seat on the CPT and this position is currently vacant. For the first time in this State, in August, expressions of interest from suitably qualified and experienced persons for consideration for appointment to the position were sought through public advertisement on the websites of the Department of Justice and Equality and the Public Appointments Service. I have nominated 3 candidates for consideration by the Bureau of the Parliamentary Assembly of the Council of Europe and it is a matter for the Council to decide which nominee will be appointed. Dr Mary Rogan is one of my nominated candidates.
Does the punishment fit the crime?
A simple, understandable and popular perspective is that following a conviction, the punishment should fit the crime. Analysis of this concept, however, really illustrates it is far more complex than may initially be supposed. It is important to identify by way of general application what principles or values should inform our system of punishment. It is also clear that the punishment that "fits the crime" is not necessarily identical for what appear on the surface to be identical crimes. The "fit" in individual cases can substantially depend not only on the background circumstances to the crime committed but also on the background of the convicted offender and additionally should also be influenced by the impact of the crime on the individual victim. This is way different sentences may be appropriately imposed on different offenders for crimes that appear superficially identical. Our understanding of the principles or values which should inform sentencing and punishment in the criminal justice system can define us both as a people and give a fundamental insight into our culture. So a reasoned national conversation on this subject would be of positive benefit.
This question about the rationales of punishing offenders is critical in the area of sentencing. In any criminal case the sentence determines how much an offender must suffer for his or her offence. That suffering involves the loss of personal liberty and the other ‘pains of imprisonment’. Now the courts exercise sentencing discretion within the limits of certain principles. But are we clear enough about why to punish, whom to punish, and how much to punish?
Two views of punishment dominate. On the one hand, the utilitarian outlook justifies punishment on the ground that its beneficial effects outweigh its harmful effects. The key assumption is that punishment is likely to reduce crime and so serve the general welfare. On the other hand, the retributive outlook holds that punishment is the intrinsically just response to voluntary criminal behaviour. To find guilt and impose punishment, the court must to be satisfied that the offender performed a voluntary act or omission, and had the required mental state, for example, intention or recklessness. The presence of these mental states shows that the offender had a fair chance, which he or she failed to take, to avoid the imposition of punishment.
The principal aims of sentencing flow from these two views of punishment. The commonly invoked aims of sentencing are retribution, deterrence, rehabilitation, incapacitation and denunciation. Retribution flows from the retributive outlook on punishment, while deterrence, rehabilitation and incapacitation flow from the utilitarian outlook. In recent times, restoration or reparation has been offered as an aim of sentencing. Now I think that these aims are reconcilable so long as the appropriate role of retribution is not overlooked in a carefully structured hierarchy of aims.
We must, however, be clear about what we mean by ‘retribution’. Retribution reflects the moral conviction that people who offend deserve to suffer the pains of punishment. An oversimple view of this proposition is that a punishment or sentence should be designed and imposed as a kind of judicially authorised or sanitised revenge. Byrne & McCutcheon, [The Irish Legal System (4th ed) (Dublin: Tottel Publishing. 2007) 198.] On this view, a sentence is the emotive expression of the urge for outraged retaliation. The Court of Criminal Appeal rightly emphasises that a court has to consider ‘what is the appropriate sentence for this particular crime because it was committed by this particular offender’; it does not engage ‘in an exercise in vengeance or seek to retaliate against’ the offender for the sake of his or her victim. [DPP v GK  IECCA 110]. The upshot of this judicial view is that retribution has its roots in a sensibility that rejects vengeance.
The question of exactly what justifies retribution attracts contrary answers. [Nigel Walker Why Punish (Oxford: Oxford University Press 1991) 73-75.] Some argue that retribution is required so that the offender can pay his or her debt to society. Others say that it aims to remove the unfair advantage that the offender gets over law-abiding citizens by offending. Right up to the 1970s many penologists questioned the justifiability of retribution as a sentencing aim. But, in the past 30 years, retribution has gained a revival in the shape of the just-deserts theory. The essence of the desert rationale is that the sentence is addressed to the offender viewed as a responsible moral agent who chose to offend and has the capacity to understand the judicial evaluation of his or her offending conduct. This evaluation is transmitted to him or her by imposing a deserved punishment in the form of a proportionate sentence. The proportionate sentence is fixed by reference to the gravity of the offending conduct and the culpability of the offender. [A von Hirsch ‘Proportionate Sentences: A Desert Perspective’ in Ashworth, A & Roberts, J (eds) Principled Sentencing: Readings in Theory and Policy (3rd edn) (Oxford: Hart Publishing 2009) 115, 118.]
Under Irish law, traditionally, proportionality has had a central role at the legislative stage of grading offences. Although the Oireachtas has discretion to prescribe sentences for offences, its power is subject to constitutional principle. The Supreme Court's decision in Cox v Ireland  2 IR 503 (SC0). means that the Constitution requires some proportionality between the gravity of the offence and the punishment prescribed for it. Legislation must not only clearly specify the ingredients of an offence, but also grade offences and affix sanctions proportionately. The usual approach is for legislation to set out a maximum sentence, while within the range so set, a court selects the exact sanction to punish a convicted offender before it.
Some would favour giving priority to rehabilitation, which in the European context is often called ‘resocialisation’ or ‘resettlement’ or ‘reintegration’. Rehabilitation is a forward-looking justification for punishment that aims to reform an offender. For example, probation or the community-service sentence has a rehabilitative rationale. So too do prison regimes that emphasise reforming prisoners. The assumption is that offenders have tendencies to offend that can be addressed by services designed to eliminate the underlying motivation to offend. Rehabilitation was a prominent aim of sentencing in the mid-twentieth century, especially in the United States. But the outcomes of several evaluations of the effectiveness of rehabilitative programmes turned out to be disappointing. [Martinson, ‘What Works? Questions and Answers About Prison Reform?’ (1974) 35 The Public Interest 22.] Francis Allen objected to rehabilitation because, he thought, it denied the personal responsibility of prisoners, was open to misuse, and did not provide a reliable technique that was effective in preventing re-offending. All, [‘The Decline of the Rehabilitative Ideal’ in von Hirsch, Ashworth & Roberts (eds) Principled Sentencing: Readings on Theory and Policy (Hart Publishing, 3rd edn, 2009) 14-15.]
In my view, the more measured view is that rehabilitation is sometimes possible. There is no general, one-size-fits-all, technique of rehabilitation. Evidence-based rehabilitative services have to be targeted at suitable offenders, adequately resourced, and the conditions for implementing them must be strictly met. From a rehabilitative perspective, we can focus on normalising the prison experience, ensuring progression through the prison system, and helping prisoners to develop their capacities for reintegration while emphasising the importance of personal responsibility. The Irish Prison Service is developing a new Integrated Management System (ISM) that involves the prisoner himself or herself taking more responsibility for their own development through engagement with the service providers in the prison. About 1000 prisoners take part in ISM at the moment and an incentivised regimes policy will encourage more prisoners to take part in structured rehabilitation activities.
We have to pursue the rehabilitative aim. In 2008, the Institute of Criminology at University College Dublin, facilitated by the Irish Prison Service, published a study of recidivism in Ireland. [O’Donnel et al, ‘Recidivism in the Republic of ireland’ (2008) 8(2) Criminology & Criminal Justice 123.] The study shows that the demographic characteristics of the Irish prison population are similar to those of prison populations in comparable countries. Most of the group studied were male (93%), unmarried (82%) and were under 30 years. More than half of the group had not taken any formal state examinations (54%) and had no job before their imprisonment (52%). What is clear from this is that sending offenders to prison without tackling the underlying social conditions of their criminality – the lack of skills, education, and employment – while they are in prison only serves to reinforce the cycle of criminality.
Citizens should have fair notice of the rationales of punishment or the aims of sentencing. The Rule of Law requires that judicial sentencing decisions should be made transparently and by reference to principles articulated in advance. The objective is to assure offenders even-handed treatment by preventing or reducing sentencing disparity. But how do we ensure that everyone has fair notice of the principles that guide sentencing discretion? Clearly, we must do so because sentencing decisions concern the liberty interests of the citizen. So more questions for you. Should we leave sentencing to judicial self-regulation? Should the legislature enact a sentencing law to provide the courts with advisory sentencing guidelines or should it prescribe rigid sentencing grids?
In reflecting about this we must keep in mind the important constitutional value requiring an independent judiciary. True, the appellate courts have developed principles of sentencing. But the lack of statistical information on judicial sentencing practice hampers discussion of this fundamental matter. The general impression is that a large number of offenders convicted of relatively minor offences receive short prison sentences, and that there has been a marked increase in recent years in the length of sentences imposed for more serious crimes. The ideal is to have information of the highest quality on judicial sentencing practice. I note positively that, in 2007, the Board of the Court Service piloted a project to provide information on sentencing decisions. The project is known as the Irish Sentencing Information System or ISIS, See www.irishsentencing.ie. which is overseen by a Steering Committee of judges, assisted by an expert on sentencing law. Its objective is to craft a computerised information system on sentencing practice that may inform judges when considering the sentence to be imposed in an individual case. By entering relevant criteria, a judge can find information on the range of sentences and other penalties that have been imposed for particular types of offences in previous cases. The system informs judges - it does not interfere with judicial independence in sentencing. ISIS carried out pilot research projects in the Dublin Circuit Criminal Court, the Cork Circuit Criminal Court, the Limerick Circuit Criminal Court, the Dublin District Court and the Court of Criminal Appeal between 2007 and 2009. The results of these projects, which are on the ISIS website, give very interesting information on sentencing practice. As Minister, I believe the website to be of great assistance in ensuring greater uniformity of sentencing and I hope it will be possible, within budgetary constraints, to reactivate and maintain it in the new year.
I must also mention that the subject of sentencing and penal sanctions has been a key element of the White-Paper consultation process which my Department has been engaged in since 2009. It was considered at a consultation seminar held in 2010 and formed part of a discussion document and a call for written submissions. Last year, a report was published covering these submissions and the consultation meeting. The material is accessible on my Department’s website. www.justice.ie.
Modern penal policy and practice, including the sentencing process, increasingly recognises the rights and needs of victims of crime. A modern penal system must recognise the rights and needs of victims of crime and their families. The first commitment in the Justice and Law Reform section of the Programme for Government, 2011-2016 is for legislation to strengthen the rights of victims of crime and their families. In general, the rights of victims divide, first, into rights to appropriate services and, second, procedural rights involving victim participation in the sentencing process. On the issue of victim services, it is important that we spell out the obligations of the various service providers to ensure delivery to people who need their services. Statutory rights to information will be a key element of the new legislation providing for services to the victims of crime. Information is power. In the case of victims of crime, it is clear to me that lack of information about how the criminal process works and about a particular case, can aggravate the powerlessness felt by victims and their families. I will remedy this by requiring criminal justice agencies by law to give relevant information to victims of crime in a timely fashion and will reinforce the existing good practice in parts of the criminal justice system and support its extension to the remaining parts.
Of course, some argue strongly in favour of improved services for victims while questioning the wisdom of victim participation in sentencing. My conviction is that the victims of crime and their families must no longer be silent partners in the criminal process. It flies in the face of justice to shut victims of crime out of the very process that is designed to address the wrongs they have been forced to suffer. Giving victims a real voice in the sentencing process is vital because it contributes to dignity, self-esteem and the potential for moving on with one’s life. It also enables the court to appreciate exactly how the offence has hurt and harmed the victim and his or her family, and to more fully understand what just deserts require in the form of a punishment. Of course, the court must have a more complex insight when sentencing than simply a perspective of the offenders "just deserts" based on the impact of an offence but it is also important to factor consideration of that impact into the sentencing process and to understand that different people have different vulnerabilities and are affected differently by crime. A convicted offenders reckless disregard for the impact on the victim of his or her actions should not render such impact irrelevant to the sentence imposed for a particular offence.
The Criminal Procedure Act 2010, section 4, requires the courts to have regard to the effects on victims of various offences, including sexual offences, violent offences, coercion, harassment, abduction, and false imprisonment. I intend to produce legislation that will require the courts to have regard to the impact on victims and their families of a wider range of offences, including drug offences, burglary, theft, road traffic offences, damage-to-property offences and offences that arise from the whole ugly spectrum of anti-social behaviour. I know that it is not possible for the law to undo the hurt, violation and loss that the offender inflicts on his or her victim. But the proposed legislation can do much to ensure that victims and their needs are more at the heart of the justice process. And even if the law cannot wipe the slate clean, it can help to reduce the amount of secondary victimisation. The Bill will seek to ensure that the victim who is traumatised by the original crime will not experience significant additional pain because of the harshness, indifference or blindness of the system.
Prisoners and Human Rights
Now I want to say something about the prison system. The prison system operates within a rule-of-law framework based on human rights principles. There are international, European, and domestic human-rights principles. What is significant about those principles is that they furnish a benchmark of legitimacy for prison law, policy and practice. Their basis is the conviction that people who are sent to prison keep their status as bearers of fundamental rights.
Most of you, I’m sure, are familiar with the core principles:
· Imprisonment should be used as a sanction of last resort;
The loss of personal liberty has a profound effect on the lives of prisoners. It also has harmful implications for prisoners’ families. For this reason European prison policy recommends the use of imprisonment as a last resort. The Recommendation formally adopting the 2006 European Prison Rules says that ‘no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law’.
· All prisoners must be treated with respect for their human rights;
· Prisoners retain all rights that are not lawfully taken away by the decision to send them to prison;
· Imprisonment is punishment and is not for punishment; The principle of respect for human rights in prison has an articulate fit with the principle that imprisonment is the punishment and is not for punishment. Rule 102.2 of the European Prison Rules says that, ‘Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in prison’. [The European Court of Human Rights invoked this Rule in Leger v France 19342/02  ECHR 380 (11 April 2006) at para 44.] Rules 2 and 3 of the 2006 Rules harmonise with this principle. Rule 2 says that, ‘Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.’ And Rule 3 says that, ‘Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.’
This principle of prison "as punishment not for punishment" is central to any humane prison system. In that context, I am committed to supporting the Irish Prison Service in delivering this objective.
· The principle of normalisation: – Rule 5 of the Basic Principles of the 2006 European Prison Rules which states that "life in prison should approximate as closely as possible the positive aspects of life in the community" is profoundly demanding. This principle flows logically from the principle that imprisonment is the punishment and is not for punishment. The point is that if the deprivation of liberty suffices for the purposes of punishment, then the prison regime should be like the society outside prison as far as possible. It is striking that Rule 5 says that the prison regime should come as close as possible to the ‘positive aspects’ of life outside and is intended to ensure that the level of regime and services available contribute positively to the management of the sentences.
The serious problems that the prison system faces due to overcrowding combined with the fact that some prisons are long past their sell-by-date provide a challenge in meeting the demands of the principle of normalisation. These conditions can impose a strain on prisoners, staff, and the regime itself and it is in this context that the recommendation of the Thornton Review Group, which I will discuss in more detail later, is so important.
· Individual planning for the management of long-term sentences should aim at securing progressive movement through the prison system (the principle of progression);
· Imprisonment should be managed in a way that helps the reintegration of prisoners into free society (principle of reintegration);
All prisoners should at least be considered for release. Thought-out steps should be taken to give prisoners the best possible opportunity to reintegrate themselves into society. They need to be physically and mentally healthy, and to have a fair chance to benefit from training or education while in prison. The release procedures should be structured in a way that helps reintegration. Pivotal here is the need to give practical effect to the principle of progression, which emphasises the importance of achieving beneficial movement through the prison system of long-term prisoners. When early release is allowed, for instance, conditions may be used to make reintegration more likely. The concept of earned, incentivised early release is wholly compatible with this principle. Moreover, the use of secure, step-down facilities to prepare prisoners for reintegration is desirable.
Rule 7 of the 2006 European Prison Rules says that, ‘Co-operation with outside social services and as far as possible the involvement of civil society in prison life shall be encouraged’. The idea is to promote a continuity of services so that prisoners have appropriate supports from cell to community.
· Consideration should be given to the diversity of personal characteristics to be found among long-term prisoners and account taken of them to make individual plans for the implementation of the sentence (the principle of individualisation);
· The next principle I am referring to recognises that the interaction of prison staff and prisoners determines the climate of day-to-day prison life. Rule 8 of the European Prison Rules says that, ‘Prison staff carry out an important public service and their recruitment, training and conditions of work shall enable them to maintain high standards in their care of prisoners’. Properly recruited and trained prison officers are ‘the cornerstone of a humane prison system’. [CPT 11th General Report [CPT/Inf (2000)P 16] para 26]. They are more likely to be able to adopt less authoritarian styles of interacting with prisoners. The professionalism of prison officers requires that they should be able to deal with prisoners in a decent and humane manner while attending to matters of security and good order. In this context it is to the credit of the management and staff of the Irish Prison Service that relations, despite the difficult conditions, between prisoners and staff within the prison system are generally very good. I intend to ensure that the recruitment, training and conditions of work of the staff of the Irish Prison Service continue to meet the standards of this recommendation.
· Lastly, I mention the principle of non-discrimination. Rule 13 of the 2006 Rules prohibits any discrimination on grounds ‘such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. [See Stummer v Austria 11 October 2007 (Admissibility): The European Court of Human Rights declared admissible a complaint that a prisoner was being unfairly discriminated against by the failure to count in the time he had worked in prison for the purpose of his post-retirement pension.]
This catalogue of human-rights principles recognises the importance of responding to the reality that the experience of imprisonment harms and humiliates many prisoners. It holds that the use of imprisonment should be minimised and that the dignity and human rights of people in prison should be protected.
Alongside our own constitutional principles and those set out by the Inspector of Prisons, these principles are an invaluable resource; by doing our practical best to give them operational effect we can ratchet up the quality of the prison system. I will be supporting the Irish Prison Service and the Probation Service in developing, continuing and expanding concrete measures to give effect to these principles.
Now, the prison system operates today under great pressure due to the high number of offenders being sent to prison. Five years ago the number of prisoners in this jurisdiction (including those on temporary release) was about 3,300. When I took office earlier this year, the number of prisoners was over 5,000. This figure represents a 50% increase. I have heard no suggestion that we are 50% safer because of this rise in imprisonment.
The number of committals to prison in 2010 was 40% higher than it was in 2006. The rate of imprisonment is expressed as the number of prisoners for 100,000 inhabitants of the country. Ireland has a rate of imprisonment of about 115 for 100,000 inhabitants. We have already moved from a situation where the rate of imprisonment in Ireland was below the average for Europe to a situation where we may be just above the average.
It is also a matter of fact that several of our prisons are operating beyond their design capacity. Although the Irish Prison Service is doing an excellent job, the pressure on their resources creates difficulties and affects the regime for prisoners and the rehabilitative process. The serious problems that the prison system faces due to overcrowding combined with the fact that many of the prisons are long past their sell-by-date provide a challenge in meeting the demands of the principle of normalisation. We are forced to maintain in use older prisons which do not meet modern standards. Cork and Mountjoy prisons immediately come to mind. The conditions can impose a strain on prisoners, staff, and the regime itself.
My objective is to ensure that this ever increasing rise in the use of prison does not continue. Criminal-justice policymaking under the previous government placed substantial emphasis on harsher sen-tencing but this emphasis in relation to some, but not all, was political optics and a game of charades. Whilst it contributed to a substantial growth in prisoner numbers and prison overcrowding it also lead to the widespread use of the temporary-release power to ease the very problem of overcrowding it created. As a consequence many hundreds of offenders have been prematurely released prior to becoming eligible for release on remission. These policies have come at a great cost to taxpayers and their benefit to the State, victims of crime or the wider community is not clear
There are, of course, vicious and dangerous criminals engaged in murder and mayhem, terrifying communities and trafficking drugs; there are others engaged in tiger kidnappings and subversives with no respect for human life or the views or beliefs of others for whom long sentences upon conviction for serious offences are an essential protection to the community. But there are many other offenders who do not fall into this category. I hope that the current severe economic and fiscal emergency will encourage support for my approach to examine measures where a less pu-nitive approach to criminal justice may not only make more fiscal sense but may also better protect the safety of our communities. We need an informed debate as to what are the appropriate sanctions for those who engage in crime. The simplistic response to crime of increasing penalties and introducing presumptive mandatory sentences is not an adequate response to the complexities involved.
The Need to Build New Prisons at Thornton Hall and Kilworth
I have long held the view that the reintegration of offenders into society must be at the core of the prison system. But overcrowding, high levels of temporary release and poor physical infrastructure in some of our prisons has bedevilled the ability of the Prison Service to give real effect to that objective. The problems that overcrowding create has been well documented by the Inspector of Prisons in his various reports and I don’t propose to go over those issues here tonight as I know many of you are very familiar with them.
Following my appointment as Minister for Justice, Equality and Defence, I initiated a comprehensive review of the Thornton Hall project. The Thornton Hall Review Group concluded that decisive action is required on several fronts to address the problem of overcrowding and poor physical conditions, particularly in Mountjoy and Cork Prisons. As you know, the Government has decided in principle to proceed with the construction of new prison facilities at Thornton Hall and also at Kilworth, County Cork, but on a much smaller scale and design to that previously envisaged. The timeframe for the Thornton Hall and Kilworth Prisons projects will be discussed in the autumn in the context of the Government’s discussions on capital spending priorities for 2012.
Based on the Review Group’s recommendations, the new prison at Thornton Hall will have 300 cells with operational flexibility capable of accommodating up to 500 prisoners. Appropriate regime activity and other supports will be provided to match the capacity of the prison. Each cell will have in-cell sanitation and a shower facility. I also intend to provide step-down accommodation capable of accommodating up to 200 prisoners with relevant regime activity inside the boundary security wall. In effect, this will provide an open centre regime within the secure perimeter.
Cork Prison is one of the most overcrowded prisons in the Irish Prison system. The Review Group was very critical of conditions at the prison and recommended that the prison should be closed at the earliest possible occasion and replaced instead with a new prison at Kilworth, County Cork. This new prison will be based on a similar design to Thornton although on a smaller scale with 200 cells capable of accommodating up to 350 prisoners together with secure step down facilities capable of accommodating up to 150 prisoners.
I believe that the new plans for prisons at Thornton and Kilworth present us with the opportunity to effect real change in our prison system and implement the ‘principle of progression’ in the penal system through providing the physical infrastructure to facilitate delivery on the core values of normalisation, progression, and reintegration of offenders. These modern prison facilities will also enable the prison authorities to create incentivised regimes to enable prisoners to progress through the system in a way that helps them to prepare them for their eventual reintegration into society. This recognizes in a practical way that reintegration of offenders into society is one of the core functions of the prison system.
Front door and back door strategies for reducing the overuse of imprisonment
Of course, prison overcrowding cannot be solved solely by building more prisons. Additional steps are required to reduce the prison population and our reliance on imprisonment. You will know that the Thornton Hall Review Group recommended a combination of front-door and back-door strategies to reduce the prison population. The front-door strategies involve giving the courts the power to impose a wider range of non-custodial sanctions. The back-door strategies involve an incentivised scheme for early temporary release coupled with a requirement to do community service under supervision in order to ‘pay back’ the community. Another recommendation includes the introduction of a home-detention system in appropriate cases.
I welcome the Group’s recommendation on non-custodial sanctions. In the short few months since taking up office, we have achieved much progress in this area and I am confident this will make a difference. The greater use of community service involves, for example, the development of a pilot scheme under which offenders may be offered earned earlier release in return for community service. This scheme will provide for the early temporary release of appropriate prisoners who are considered to pose no threat to the community. My officials are working on this and I expect to see this coming on stream shortly. In addition, I intend to give new guidelines to the Parole Board for the application of a similar scheme to long-term prisoners. It may take time but I expect to make further announcements about the implementation of these reforms later in the year.
I am particularly pleased to say that the Criminal Justice (Community Service) (Amendment) Act 2011 was signed by the President on 2 August last. It is now law and the provisions of the Act will become operational in October. This new legislation requires the sentencing judge to consider the imposition of community service where a custodial sentence of 12 months or less is being considered. In short, it seeks to encourage making greater use of community service as an alternative to custody and reducing our reliance on imprisonment. I believe too that community service is a cost-effective community sanction which adds measurable value to communities. It is a fact that thousands of unpaid hours of work are completed every year which benefit many communities and voluntary groups.
The Fines Act 2010 also introduced measures to prevent the automatic imprisonment of fine defaulters. The imposition of a fine is of course the most widely used form of alternative sanction. I intend to bring forward proposals to introduce a system of "attachment orders" allowing a small amount of money to be taken from wages or social welfare facilitating the payment of the debt or fine over time. It is important to remember that with the commencement of section 14 of the Act with effect from 4 January last, there is an obligation, for the first time, on the court to take account of the person's financial circumstances before a fine is imposed. Effectively, this means no person can be sent to prison solely for the reason that he or she cannot afford to pay a fine.
The concept of restorative justice also has a place in the range of non-custodial options. The process seeks to bring victims and offenders into contact with each other, on a voluntary basis and in a managed and safe setting. This enables victims to explain to their offenders the impact that the offence has had on them, while offenders are given the opportunity to make right, in a practical way, the wrongs done to their victim or victims. There is strong evidence from international studies that restorative justice is effective at meeting the needs of victims, at getting offenders to accept responsibility for the harm done to victims and at helping them to change behaviour and avoid re-offending in the future.
Some of you will know that an expansion of the current adult restorative justice model is currently being piloted. Its implementation is being monitored by the Probation Service who will provide a report on the effectiveness and value for money of the model after a 12 month operational period. The objective is to build the foundation for the implementation of a robust restorative justice model of practice providing an alternative to a prison sentence of less than 12 months duration and I look forward to reviewing the outcome in due course.
It is also worth mentioning that the Review Group recommended a strategic review of all aspects of penal policy, including crime prevention, sentencing policies, alternatives to custody, prison accommodation and regimes, support for rehabilitation and reintegration, and the position of female prisoners and juveniles. I am pleased announce that I have asked Liam Herrick to participate in the group which I hope will commence its review within the next month. The Review Group also recommended the establishment of an inter-departmental group to examine the issue of people with mental illness who have been sentenced by the courts and transitional arrangements for the management of 16 and 17 year olds in St Patrick’s Institution pending the construction of new juvenile facilities in Oberstown. My officials are examining those recommendations many of which will undoubtedly make a positive contribution to the development of penal policy in the years ahead. Notwithstanding the difficult economic times in which we live, my colleague, the Minister for Children & Youth Affairs, Ms Frances Fitzgerald TD, will also be seeking to progress the development of new national detention facilities for children in Oberstown to accommodate 16 and 17 year olds there.
The subject of mandatory sentences arises for consideration in any debate on the appropriate use of imprisonment. Although mandatory sentencing has various forms, [There are a number of statutory exceptions to the approach based on proportionality.  Thus legislation sets out a mandatory sentence for murder. The courts have no discretion and so must impose the mandatory life sentence.  The courts also lack sentencing discretion when the governing legislation provides for mandatory minimum sentences. As an example: if a person is convicted of a second or subsequent offence under section 15A or 15B of the Misuse of Drugs Act 1977, as amended, which provide respectively for the offence of possessing or importing controlled drugs over the value of 13,000 euro for sale or supply, the court must impose a sentence of 10 years imprisonment or more. Mandatory minimum sentences also apply to certain firearms offences.  Legislation also provides for presumptive minimum sentences for drug-trafficking offences and for certain firearms offences. Under this legislation, if the court is satisfied that exceptional circumstances exist, it may depart from the minimum sentence prescribed by the legislation and impose a lesser sentence. An example of this approach is in section 27 of the Misuse of Drugs Act 1977, as amended: when a person is convicted of an offence under section 15A or 15B, the court must, when imposing sentence, impose a term of imprisonment of not less than 10 years on the offender, unless the court determines that it would be unjust in all the circumstances to do so because of exceptional and specific circumstances relating to the offence or the offender.] its essential feature is that it either removes or severely restricts the court’s discretion to individualise punishment. Traditionally, such sentencing requirements applied in a very limited number of cases, most notably in the case of a conviction for murder or treason. But this has changed over the last decade or so with the introduction of presumptive mandatory minimum sentences in the case of drug trafficking and firearms offences and in the case of certain repeat offenders.
Before legislation requiring mandatory sentences for drug offenders came into effect, drug offenders made up a small fraction of the prison population. Between 2005 and 2009 the number of offences tried by the Circuit Court increased for every offence type. [See Circuit Court statistics in the Court Services Annual Report.] Drug offences make up the second biggest category next to robbery and theft. They increased from 15% of prison sentences in 2005 to 25% in 2009. It is striking that the number of sentences of ten years or more has gone from 1 in 2005 to 69 in 2008 and 35 in 2009. It is a reasonable inference that the statutory presumption in favour of a 10-year sentence for drug dealing is shaping sentencing patterns and contributing to the silting-up phenomenon in the prisons.
The idea of imposing long mandatory sentences for serious offences has had undoubted intuitive appeal. But there is a growing body of evidence that the use of mandatory sentences does not make things better. I note that, in 1997, researchers at the Rand Corporation, using various mathematical models, compared the cost effectiveness of various strategies to control drug crime, including mandatory minimum sentences. [Caulkins et al, Mandatory Minimum Drug Sentences (Santa Monica, CA: Rand 1997). See also Rand research brief at http://www.rand.org/pubs/research_briefs/RB6003/index1.html (last accessed 4 August 2011).] Their analysis considered the cost effectiveness of each strategy in relation to cocaine consumption and crime reduction. They concluded that conventional sentences imposed on dealers are more cost effective than long mandatory minimum sentences and that providing appropriate treatment for serious drug abusers is more cost effective than imprisonment in reducing drug use or drug-related offending. They also found that using mandatory minimum sentences was the most cost-effective strategy only in the case of high-level dealers – the kingpins – but that the sentencing power was more likely to be used in practice to punish low-level offenders – the mules or users. I also note that, in light of their negative experience of the effects of mandatory sentences, Michigan in the Unites States and the Northern Territories in Australia are retreating from this blunt criminal-law instrument.
Sensibly, the Government is committed to reviewing policy in the area and the outcome of two processes that are ongoing at present will feed into this review. First, my Department is engaged in a public consultation process to develop a White Paper on Crime which will present a policy framework for future strategies to combat and prevent crime. Part of the public consultation process focussed on criminal sanctions, including the subject of mandatory sentences. And, second, the Law Reform Commission has also been asked to examine and, if appropriate, recommend reforms in the law in relation to mandatory sentences. I understand that the Commission hopes to publish a Consultation Paper on this subject later this year.
Ensuring that fairness is part of the integrity of the prison system
Fairness must be part of the integrity of the prison system, and requires a strong and robust independent oversight of our prison system. The constitutional right of prisoners to have access to the courts – to apply for habeas corpus or judicial review, for example - furnishes an important safeguard. Although several judgments have resulted in changes in penal policy, such actions are generally concerned with the circumstances of individual prisoners. The appointment of a statutory and independent Inspector of Prisons was therefore a major step forward in providing for a more systematic oversight of the prison system.
The inspiring track record of our current Inspector of Prisons clearly shows that he has been very effective. He has tackled the issue of poor conditions in our older prisons and has worked hard to ensure the State complies with its international obligations and treats properly those held in custody. As I said recently, this has involved inspecting prisons, a retrospective exercise in each case. His role also has a vital prospective component. The Inspector has produced statements of principle based on human rights that define the requirements of a safe decent and effective custodial system. In other words, he is addressing himself not only to what is being done but to what should be done.
The traditional oversight mechanism for prisons was provided by the Prison Visiting Committees established by statute in 1925. While good work has been done by them, we need a more updated and integrated approach. In line with this, I recently announced plans to expand the Inspector’s role which I believe will greatly enhance his independent oversight of the prison system. Under these proposed new arrangements, Visiting Committees will report every two months to the Inspector of Prisons on issues they may wish to bring to his attention. Any urgent or major issue may be reported to the Inspector at any time. My Department will examine how we can ensure that only suitable people with the appropriate qualifications and a genuine interest in prison issues will be appointed to Prison Visiting Committees. Ultimately, the Inspector will have independent oversight of their work. I believe this will also make the Committees more effective who will continue to meet with prisoners and liaise on their behalf with the prison authorities.
I have of course published a number of the Inspector’s reports since coming into office. Notwithstanding poor prison conditions, areas mentioned include the use of special cells, prisoner complaints and the procedure to be followed following the deaths of persons in custody. The Inspector has also addressed matters such as minimum standards for prison accommodation and the regime and services that should be provided. Similar concerns have been expressed by the Committee for Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). New procedures have been drawn up in respect of these issues and these will be supported by changes to the Prison Rules. Amendments to the Prison Rules have been drafted and are being finalised in conjunction with the Office of the Attorney General.
It is also worth mentioning plans to strengthen the Parole Board which currently operates as a non-statutory agency. It is my intention to enact legislation to place the Board on a statutory footing and I hope to introduce the relevant legislation next year. The detail has yet to be worked out but I am hopeful that this too will make a difference in how we approach and manage the administration of long term prison sentences. We need to ensure and retain public confidence in our criminal justice system but we must also be fair and humane in how we do this. As a society, I am confident that we can do that and I welcome opportunities such as we have here tonight to discuss the possibilities with you. There are challenges which we must meet and they include implementing necessary reform in our prison system and making sure that options other than imprisonment are available to the judiciary when dealing with offenders.
The issue of complaints by prisoners, particularly those alleging ill treatment or assault are matters which have recently been addressed by both the CPT and the Inspector of Prisons. While the Irish Prison Service have amended their own policy and procedure for investigating such complaints in order to take into account some of the concerns of the latter - for example allowing for the taking of witness statements from prisoners who were present during an incident and the imposition of a timeframe within which the internal investigation must be completed - I am not satisfied that international best practice is being observed in this area. It is my intention to bring forward amendments to the Prison Rules 2007 which will, among other things, give a statutory footing to the complaint investigation procedure and will introduce an independent element to the investigation. I have recently asked the Inspector of Prisons to give consideration to this matter and to advise me as to the most appropriate approach to be taken in an Irish context so as to ensure compliance with best practice. The Inspector's views will then be taken into account in relation to the framing of the amended Rules in this regard.
Mental Illness in Prison
Prisoners with mental health issues have become a growing problem in recent years and one which the previous government failed to address.
Time after time, individuals with mental health problems, ranging from mild to severe, end up in prison having committed offences –sometimes minor, sometimes serious – but where the underlying cause cannot be adequately addressed in a prison environment.
These prisoners often find themselves on a treadmill of recidivism with no real hope of escaping this cycle of hopelessness.
While efforts have been made to divert mentally ill people from the Criminal Justice System, for example through the Prison Court Liaison Service, I believe more can be done in this area.
Imprisonment can aggravate mental health problems, heighten vulnerability and increase the risk of self-harm and suicide. There is a higher prevalence of mental disorder in prisons than in the community at large. In every prison there are people who should more properly be treated in some form of therapeutic environment, either secure or community-based. Some of these people are casualties of the decision to close large mental hospitals without providing adequate community-based care.
There are circumstances in which it would be extremely helpful to have better provision outside prison for those with particular mental health needs. More resources are needed to provide community based care and alternative accommodation to protect this vulnerable group of offenders.
In their report, the Thornton Review Group acknowledged that the problem of prisoners with mental health issues is one which needs to be addressed urgently. The Group also believed that people with mental health problems should be treated in a healthcare, as opposed to a prison, environment. This reflects my own personal views on this most sensitive issue. In line with the recommendations made by the Review Group I am currently in the process of establishing a group to examine the issue of mental illness among prisoners.
As everyone here this evening is aware, prison is merely a reflection of the community outside. Consequently, as long as drug use is a problem in the community it will continue to present challenges to the Prison System.
There is a high prevalence of drug use among prisoners. Dealing with this problem is, in my view, critical in terms of prisoner rehabilitation and reintegration. In this context, the Irish Prison Service continues to invest significant resources into dealing with the drugs problem, in terms of supply reduction, drug treatment, education and counselling.
Given the large number of prisoners requiring drug treatment services, the Prison Service endeavours to provide a comprehensive range of such services in closed prisons, where demand is high for drug treatment services. Drug rehabilitation programmes for prisoners involve a significant multidimensional input by a diverse range of general and specialist services provided both by the Prison Service and visiting statutory and non-statutory organisations. Prisoners who, on committal, are engaged in a methadone substitution programme in the community will, in the main, have their methadone substitution treatment continued while in custody. Methadone substitution treatment is available in 8 of the 14 prisons and places of detention (accommodating over 80% of the prison population).
There has been an ongoing debate about methadone treatment with a variety of views for and against. However, clinical studies have indicated that the impact of methadone treatment on health and offending behaviour is positive and in a prison setting, this treatment has specific positive outcomes in the context of:
Reduced drug and heroin use and opportunity to stabilise drug use +/- detoxification
Linkages to treating agencies in the community
Reduced injecting and risks associated
Treatment of withdrawal symptoms
Improved mental and physical health through accessing treatment
Reduced rates of self harm and overdoses
Reduced violence and aggression
Reduced risk of post release deaths
Consultant led in-reach addiction services are provided at Cloverhill, Wheatfield and the Mountjoy Complex. A GP with special interest in addiction services was appointed to the Midlands/Portlaoise complex in early 2010 to facilitate the expansion of drug treatment services. Merchants Quay Ireland provides a national addiction counselling service for prisoners with drug and alcohol problems in prisons and places of detention where prisoners require such a service.
Just as treatment has a critical role in the prison context equally there is, in my view, a fundamental need for drug free units in all our prisons for those prisoners who are drug free on committal and those who become drug free following treatment. While the two open centres and the Training Unit and Arbour Hill are drug free prisons, it is my intention to ensure that we will have drug free units in all our closed prisons. The availability of a drug free environment in all prisons is, I believe, critical to the process of rehabilitation and re-integration and can contribute in a significant way to increasing the potential for prisoners to keep out of trouble upon release. This in turn will have a significant positive impact on the communities from which prisoners come and to which they will return.
I hope I have clarified within the compass of this lecture my ideas on reshaping penal policy and practice. The task before us is to find the greatest measure of humanity and respect for personal dignity and self-respect that is compatible with the just and appropriate punishment of offenders and protection of the wider community. Arguments of principle, of effectiveness in preventing crime, and of economics, all justify putting the task of modernising the prison system and developing community-based sanctions at the core of this project. We can take practical, joined-up steps to reduce the size of our prison population, protect public safety, increase fairness in the justice system, and spend money wisely. We can also create a penal system that provides constructive prison regimes that gives many offenders, having paid their debt to society, the chance of committing themselves to living worthwhile law-abiding lives. Of course, the indigestible fact and reality is that there are people dedicated to criminality who, regardless of the nature of the prison regime or of sentencing policy, inevitably re-offend. Prison is there for them.
Thank you again for your kind invitation.
I am happy to take questions.