The Minister for Justice, Equality and Defence, Alan Shatter TD, has received Government approval for the drafting of the Criminal Justice (Community Sanctions) Bill 2014 and for the publication of the General Scheme of the Bill today. The General Scheme will be submitted to the Joint Committee on Justice, Defence and Equality for pre-legislative consideration.
This new legislation will replace the Probation of Offenders Act 1907 with modern provisions dealing with community sanctions and the role of the Probation Service in the criminal justice system.
Speaking on the publication of the General Scheme, Minister Shatter said: "The Probation of Offenders Act 1907 has served us well for over a century in dealing with persons who come before the courts charged with minor offences. However, it is now time to bring forward an updated statement of the law governing community sanctions and the role of the Probation Service which reflects modern thinking and best modern practice. The new legislation will facilitate the effective and efficient use of community sanctions by the courts and will ensure that the courts have a wide range of appropriate options for dealing with persons who have committed minor offences. This should help to reduce the numbers of people unnecessarily imprisoned, at significant cost to the taxpayer, for minor offences. The legislation will take full account of the interests of victims of crime by making it a statutory requirement for the courts to have regard to the interests of victims when making decisions about community sanctions. The General Scheme of the Bill will be submitted to the Oireachtas Justice Committee so that there can be full public consultation on the proposed reforms."
Minister Shatter continued, "It is my intention to break the link between the payment of compensation and the sentencing of the offender in criminal proceedings. From time to time, issues can arise with sentences imposed in cases where financial compensation offered to the victim by the offender is regarded as a mitigating factor by the court when sentencing the offender. This, I believe, is particularly inappropriate in cases involving serious offences, where the requirement to impose an appropriate penalty for the crime should not be confused with the court’s power to separately award compensation to the victim for personal injury or loss.
"Under the Bill, section 6 of the Criminal Justice Act 1993 Act will be amended to disconnect the payment of compensation from the matters that the court may take into account when sentencing the offender. This amendment will provide that a compensation order can only be made in addition to any other sanction, and not instead of a sanction."
Minister Shatter continued, "The legislation will abolish the Court Poor Box, as recommended by the Law Reform Commission nine years ago, and replace it with a fair, equitable and transparent system of reparation that will apply only to minor offences dealt with by the District Court. The new Reparation Fund will be used to provide additional funding for essential victim support services and to the state funded victim compensation scheme. The Reparation Fund may not be used for any purpose other than this."
Amongst the many provisions contained in the proposed legislation, it is intended that the Bill will:
· provide a modern statutory framework for the role of the Probation Service,
· modernise the statutory provisions for community sanctions, including court-ordered supervision of offenders by the Probation Service, making clear provision for Discharge Orders, Binding Over Orders and Probation Supervision Orders,
· make provision for court-ordered probation assessment reports and any necessary medical or psychiatric assessment of a convicted offender prior to sentencing,
· detail the factors to which a court should have regard in determining whether to dispose of a case by making a Binding Over Order against an individual; detail conditions that can be imposed which, if not complied with, can result in a person being otherwise dealt with; and the circumstances in which a person who has committed an offence of a minor nature should not have a formal conviction recorded against them,
· provide a focused and specific restorative justice approach in relation to proceedings for minor offences, to deal with cases where the victim is willing to accept reparation for a loss incurred or expense resulting from the crime committed, such as damage to property or damage to a vehicle,
· allow courts to set conditions relating to psychiatric treatment as part of a Binding Over Order, in order to facilitate the diversion from the criminal justice system of persons with mental illness who have committed very minor offences,
· amend the Criminal Justice Act 1993, which allows the courts in criminal cases to order an offender to pay compensation to a victim, without such a compensation order impacting on the court’s consideration of what is the appropriate sentence or penalty to impose,
· abolish the Court Poor Box and replace it with a statutory Reparation Fund to provide for a fair, equitable and transparent system of reparation, applicable only to minor offences, and for the usage of that fund to provide services for the victims of crime and compensation payments payable by the Criminal Injuries Compensation Tribunal, and to
· provide for the inspection of the Probation Service.
A link to the General Scheme of the Criminal Justice (Community Sanctions) Bill is available here: http://www.justice.ie/en/JELR/Pages/PB14000031
5 February 2014
Note for Editors:
The Probation of Offenders Act 1907 introduced structured statutory provision for the supervision of offenders in the community and provided for the appointment of probation officers. The 1907 Act remains the primary legislation applicable to the core functions and work of the Probation Service.
It is intended that the Bill will replace the 1907 Act with modern statutory provisions for community sanctions. It should be noted that this Bill does not deal with community service orders. The arrangements for community service orders provided for in the Criminal Justice (Community Service) Act 1983 will continue to operate under that Act.
Main provisions of the General Scheme
Part 1 (Preliminary and General) contains standard preliminary and general provisions, including interpretation, repeals and transitional provisions.
Part 2 Discharge Orders and Binding Over Orders
Section 1 of the Probation of Offenders Act 1907 gives the courts the power to dismiss a charge or conditionally discharge an offender. The flexibility afforded to the courts under the 1907 Act has been useful in dealing with persons charged with less serious offences. It is proposed, as far as possible, to retain that flexibility in the new legislation.
Part 2 of the General Scheme provides for the replacement of section 1 of the 1907 Act. As in the 1907 Act, Part 2 provides that a court may dismiss the charge or conditionally discharge an offender. The orders provided for in the Bill will be referred to as ‘Discharge Orders’ and ‘Binding Over Orders’. As is currently the case, the District Court will be able to make such an order without convicting the person of the offence.
The proposed Bill provides that in deciding whether a Discharge Order or Binding Over Order would be appropriate in a particular case, the court will have to consider the character, circumstances, previous convictions, age, health or mental condition of the offender, whether the offence was a trivial one and any extenuating circumstances. Unlike the 1907 Act, the legislation will specifically require the court to have regard to the interests of any victim of the offence.
Furthermore, the proposed Bill will make clear provision for the conditions that can applied to Binding Over Orders. Every person who is subject to a Binding Over Order will be required to keep the peace and be of good behaviour for a period of up to 3 years. A Binding Over Order may include additional conditions relating to residence, association or contact with specified persons, staying away from certain places and also conditions relating to the consumption of alcohol or drugs. In order to facilitate the diversion of persons with mental illness who have committed very minor offences, courts will also be permitted to set conditions relating to psychiatric treatment.
Part 2 also provides for a limited and specific restorative justice approach in relation to District Court proceedings for minor offences. It is intended that it will deal with cases such as minor assaults or minor criminal damage where the offender accepts responsibility for the wrong-doing and offers to make reparation, e.g. by paying for medical expenses or repairs to a vehicle or property, and the victim is willing to accept the reparation offered by the offender. Where all of these criteria are satisfied, the District Court can take them into account in deciding whether a discharge order or binding over order would be an appropriate way of dealing with the offender.
If a person does not comply with the conditions of a Binding Over Order, he or she can be arrested and brought back to court. The court will have the power to convict the person for the original offence and impose sentence accordingly.
Part 3 (Probation Assessment Reports) provides a clear legislative basis for a court’s power to request probation assessment reports. Such reports are to be mandatory in certain circumstances, including where a court thinks it appropriate to impose a prison sentence on a person aged between 18 and 21 who has not previously been sentenced to a term of imprisonment of 12 months or more.
Part 4 (Community sanctions supervised by the Probation Service) contains provisions relating to the imposition of community sanctions supervised by the Probation Service.
Provision will be made for probation supervision orders, which will replace probation orders under section 2 of the Probation of Offenders Act 1907. A probation supervision order will require the offender to be subject to the supervision of the Probation Service for a specified period. These orders are suitable for offences for which a custodial sentence would not be appropriate, but which are too serious to be dealt with by a binding over order.
Part 4 also provides for deferred sentence supervision orders, which will provide a statutory basis for an offender to be supervised by the Probation Service during deferment of sentence. There is no statutory basis for this at present.
Part 5 (Replacement of the Court Poor Box with a statutory Reparation Fund)
The Court Poor Box is a non-statutory system of disposal mostly used by the District Courts to impose a financial charge on a defendant to be used for a charitable purpose instead of imposing conviction. The Court Service Annual Report 2012 indicates that the Poor Box receipts through the court offices in 2012 totalled €1,902,861 all of which were paid to the District Court and subsequently distributed to charities and community organisations.
The General Scheme provides for the abolition of the Court Poor Box and its replacement by a statutory Reparation Fund, as recommended by the Law Reform Commission in its 2005 report The Court Poor Box: Probation of Offenders. The receipts from the Reparation Fund will be allocated to state financing of essential victim support services and to the criminal injuries compensation scheme.
It is intended that monies to be paid into the Reparation Fund will be collected by the Courts Service, transmitted to the Department of Justice and Equality and allocated between the Commission for the Support of Victims of Crime and the Criminal Injuries Compensation Tribunal for appropriate distribution. The Reparation Fund may not be used for any other purpose.
The Reparation Fund will be managed by the Minister for Justice and Equality insofar as the Minister will determine the portion of the fund to be used to provide services for the support of victims of crime and the portion to be utilised in the context of the State funded criminal injuries compensation scheme. The operation of the Reparation Fund will be subject to audit by the Comptroller & Auditor General.
It is proposed that the District Court may make a reparation order requiring a person guilty of
a minor offence to make a payment not exceeding €5,000 to the Reparation Fund. It will not be possible for a reparation order to be made on its own without a Discharge Order or a Binding Over Order.
Under the new provisions, reparation orders may only be made in relation to minor offences dealt with by the District Court. Unlike the existing arrangements for the Court Poor Box, the reparation order provisions will not apply to more serious offences triable in the Circuit Court.
Part 6 (Probation Service) provides a modern statutory basis for the appointment of probation officers and the role of the Probation Service.
Part 7 (Inspection of Probation) provides for the appointment of a designated person to carry out inspections and reviews of the Probation Service and to investigate matters arising out of the management or operation of the Probation Service. It is not proposed to establish a new body for this purpose.
Part 8 (Head 44) Breaking the link between compensation and sentencing
The Criminal Justice Act 1993 gives the courts a statutory power to order a person convicted of an offence to pay compensation to a person who has suffered personal injury or loss as a result of the offence. Section 6 of the 1993 Act provides that a court may make a compensation order against a person convicted of an offence instead of or in addition to dealing with the offender in any other way. This provision applies to all offences, and not only minor offences.
In order to break the link between the payment of compensation and the sentencing of the offender, it is proposed that section 6 of the 1993 Act should be amended to disconnect the payment of compensation from the matters that the court may take into account when sentencing the offender. The amendment will provide that a compensation order can only be made in addition to any other sanction and not instead of a sanction.