Thursday, 14 February 1991
Seanad Éireann Debate
Mr. Norris: I would like to welcome the Minister of State to the House. I am sure he will be an active conduit of the debate to the Minister for Justice. I hope that in his reply, which inevitably must have been prepared before my submission was heard, he will not close off totally avenues of discussion between myself and the Minister on this case. I think he is indicating, by mime of a peculiarly high order, that this is in fact the case.
The issue I am raising today is the sentencing of a prisoner whose name I have supplied to the Minister. I may place it on the record inadvertently today. I do not think that there is probably any legal difficulty about this. The man has been sentenced, but in deference to custom I will try to avoid placing the man's name on the record. However, because I will be reading rapidly from documents, it may be that this will happen.
The case was a rather unpleasant one. In 1981 there were a series of outrages committed in the west of Ireland and in the midlands in which elderly people, some of them living alone and many of them in isolated farmhouses, were attacked by travelling bands of brigands, some of them, but not all, members of the travelling community. This is a point I wish to come back to, because I feel that one of the reasons this man has been treated with undue severity is because there is a misunderstanding of the nature of the travelling community. I am sometimes regarded as a bleeding heart liberal.  On this case I would like to make the case that I am most certainly not. I have reason to say that I am not, because a close relation of mine living in the midlands was, three times in recent years, subject to this precise kind of attack. Valuable property was stolen and the man, in his eighties, was severely beaten. He had lived alone for many years in a rambling old house in the heart of the country in the midlands. I say that to indicate that I am not unacquainted with the personal distress that is caused by these crimes. I would like also to place on the record that the person in question is also not unaware of the tragic and horrible nature of the crime that was committed. In a letter to me, received 18 months ago, he says:
What happened, very briefly, was that in 1981 there was a series of crimes. An elderly woman was attacked, she was tied up, she was beaten and robbed of a small amount of money. She was subsequently rescued by neighbours. Either the shock or the injuries resulted in her death some three months later. That could not lead to a charge of murder. Subsequently, within a very short space of time, a farmhouse in which four elderly farming brotheres lived was similarly attacked. Two of the brothers were at home. They were both beaten up severely. The house was ransacked. One of the brothers died on the spot as a result of being beaten with a wooden instrument which had formed part of a wooden settle which had been broken up. This instrument was used to batter the man. He died on the spot. Another brother was removed from the scene and died in hospital seven or eight days later. Four people were subsequently arrested. I have to say that the detective work by the Garda was first rate  and we are all grateful to them for having made this arrest.
In 1982 the four people were charged. There was a series of trials. In July 1982 my informant and one of his co-accused were tried for murder. The co-accused elected to go forward on the charge of murder, while my informant offered to plead guilty to a lesser charge of manslaughter. The reason — and this is fundamental to the case — was because my informant was incapable of committing the crime. Evidence was introduced in court that this was so. I have before me documentary evidence from Dr. Maurice Brennan, the medical officer of Arbour Hill Prison. It is a certificate to attest that the person involved had been under his care for four years at that stage, the time of the letter. He had been involved in a road traffic accident in 1973 in which he suffered an injury to a nerve in his neck. This resulted in permanent paralysis of his right hand and forearm. The State Pathologist, Dr. Harbison, gave evidence at the trial that this was in fact the case, that his right arm was completely paralysed. He could not have held the block of wood, let alone delivered a murderous blow to anybody with his injured right hand.
This is important because there is a history of accidents, mistakes and in my opinion, misjudgments and of mis-applications of the law and inappropriate severity. The judge in one of the cases actually said that evidence had been produced that the indicated person might not have been capable of inflicting injuries of the severity adduced in the court. That is not actually the case. It is not a question that he might not have been able to inflict serious injury; he could not have inflicted injuries at all.
Now I have visited this man last week. He is a man of slight build and the paralysis of his arm is perfectly evident. One of the reasons that his case was treated with the greatest severity was because he was assumed to be the ringleader. This is clear from reading the evidence. There is not time in a submission of this kind to go into all the evidence. It would require days of forensic examination.
 The judge made the point that he was the eldest, that he was a married man, and that it was his car that was used in the crimes. I would put it to the Minister that this man has, in fact, explained to me — and I have every reason to believe him — that in the travelling community it is simply not a question of age or marital status; it is the brutal reality of how tough you are. The second accused, who was a mere three calendar years younger, is a man of very considerable larger stature, in the full of his health and of considerable vigour. My informant tells me that he was at the behest of this other person. I see no reason to disagree. He asked me, as a person of his stature and physical standing, how could he go against somebody who was so much stronger. That is the law of life in the raw for the travelling community. This man asked could he plead guilty to the lesser charge of manslaughter, his reason being that he did not commit the murder. He was present. He was an accomplice. But it is only in South Africa that people are comfortable with the motion that by being present at a riot you are deemed to take part in the riot and to be responsible for any criminal actions that take place. I am not trying to mitigate his involvement in the crime, for which he himself has great regret. But he did not, to the lay man at least, commit the murder, nor was he capable of it. It is an extraordinary thing to me that he is being required to serve a longer term than some of those who clearly did actually inflict the injuries.
The Director of Public Prosecutions refused his offer, and the trial went ahead on the charge of murder. The result of this trial was that the co-accused was found guilty of murder and sentenced to life penal servitude. With regard to his own trial on a charge of murder, the jury failed to agree. Right from the beginning there was doubt. The jury could not agree at his original trial for murder. A re-trial was ordered. Again, I remind the House that he had made this offer to plead guilty to the charge of manslaughter.
In 1983, the other two co-accused were  tried on the same charge of murder. They pleaded not guilty to murder. At the conclusion of that trial, the jury failed to agree and a re-trial was ordered. At this trial of the two men no offer was made to plead guilty to a charge of man slaughter. On the re-trial an offer was made to the DPP that they would plead guilty to manslaughter, which the DPP declined to accept, and so they went before the judge and jury on a charge of murder. On the conclusion of the case the jury found them not guilty of murder, but guilty of manslaughter, for which they received a sentence of nine years.
In 1984 the re-trial of my informant took place. He made the offer again to plead guilty to a charge of manslaughter, which again the DPP declined to accept. The result of this re-trial was a verdict of guilty to murder and a sentence of penal servitude for life. He appealed this to the Supreme Court, the verdict was set aside, and a further re-trial was ordered. In 1987 at this re-trial the State approached my informant, and off its own bat, suggested a plea of guilty to manslaughter and said it would be accepted. He told me — and I have no reason to doubt this — that he was given the understanding that he would receive no harsher a sentence than his other two co-accused who had actually physically participated in the murder. That seems reasonable enough. That seems fair and balanced. On the basis that they had received a sentence of nine years my informant expected that this would be the range of sentence he might expect to face. However, once again he was sentenced to life imprisonment with penal servitude.
In 1988 he went again to the Supreme Court to appeal the sentence. After hearing submissions from counsel the Supreme Court set aside the sentence of penal servitude for life and instead substituted a sentence of 14 years penal servitude from the day of the hearing, notwithstanding the fact that he had already served five years in jail. That is a point which I wish to take up with the Minister. This man has now served about eight and a half years in jail. A large proportion of that is not taken into  account in the final sentence he received. It is as if he never served that time. It has just been wiped off the slate.
I also make the point to the Minister that this man was out on bail for a period that amounted in all to two and a half years. I say “on bail” because that is not freedom. I am sure the Minister will agree with me, because he is a humane man. I hope he will make this representation to the Minister, Deputy Burke, who is also a humane man. To be out on bail for two and a half years is not the same as having your freedom, because you have the sword of Damocles hanging over your neck. This is a man with a wife and a young family who are desolate as a result of this situation.
I am not at all minimising the impact on the family of the farmers who were so brutally slain. I am not at all minimising that. I have every sympathy with the victims but — and I have heard the Minister speaking in this House on this subject — nobody in a civilised country wishes merely for vengeance. I say this not as a sentimental plea, but it also forms part of the Supreme Court judgment. One of the criteria for reducing a sentence and one of the factors what is taken into account in relation to mitigation of a sentence is the capacity of a prisoner for reform. This is referred to in one of the learned judge's judgments. The prison officers who gave evidence in one of the appeals indicated that this person was an eminent subject, highly intelligent, malleable, obedient, disciplined, co-operative. That is one ground for mitigation. Another ground — and I have gone on this track — and which I find very interesting — was that if there was an overwhelming sense of grievance because of disparity of sentence, this must be taken into account by the judge.
What I have to tell the Minister and the House is that following my visit to this man during the week, there is an overwhelming sense of grievance. I asked him: would you not make use of this opportunity, terrible as it is, to acquire further education, to take various State certificates and so on? He explained to me that he could not, because his sense  of grievance was so overwhelming and that if he had a reasonable terminal limit to his term of imprisonment he could then accommodate himself and take on the question of further education. However, his sense of grievance was such that he was in a sense in need of psychiatric assistance.
This is a question of — I will not say, mistrial — disparity of judgment. There was a lot of unfavourable newspaper publicity at the time of the final judgment. I would like to place that on the record. I believe that the newspaper publicity which indicated that this man was a member of a travelling family and which raked up a lot of the crimes and so on, was most unhelpful. I say to the Minister that this is the kind of publicity which is badly regarded when Irish people are being tried in England. I have to say that there is a suspicion among the settled community with regard to members of the travelling community. There was a very heightened atmosphere because of the brutality and disgusting nature of the crimes committed. I feel that my informant has suffered — and suffered rather badly — from this factor.
I would like to look very briefly at the judgment in this case. It is important to look at some of the things that happened. This is the judgment of the Chief Justice in the Supreme Court. The briefing documents I have before me indicate one of the reasons why my informant is so disquieted by the situation. On page 11 of the judgment of the Chief Justice he says that two others — and he names them, but I will not — both being 18 years of age at the time of the commission of the offences pleaded guilty to manslaughter and in respect of that were sentenced to nine years penal servitude. The client points out that this is incorrect. The client contends that there is an unjust disparity between his sentence and the sentence of his co-accused. He contends that he was the only one of the accused who pleaded guilty and he had offered this on each occasion from 1982. The court was misinformed on this. Again, there is the question of misinformation. He also takes judgment of the Chief Justice where on  page 12 of the Supreme Court judgment, the Chief Justice stated that other members of the raiding gang possibly personally inflicted more direct violence on the victim than did the appellant. This is the point I have made, I hope with some effect, that he was physically incapable.
The learned judge refers to these points in his judgment. I would like to list them for the Minister so that the Minister may be able to deal with them either now or in discussions subsequently. The learned judge said that he was satisfied that one of the factors underlying this principle — the principle of mitigating a sentence — is the question of when two prisoners have been jointly involved in a crime and one get a lighter sentence, and this creates a problem of apparent injustice. He said that he was satisfied that one of the factors underlying this principle is a substantial sense of grievance of unfair treatment which may be caused by apparently unequal sentences. I am sure the Minister will agree with me that that existed in this case. The judge then, I think understandably, because he was misinformed by counsel for the State, said that two others, both being 18 years of age at the time of the commission of the offences, pleaded guilty to manslaughter and in respect of that were sentenced to nine years penal servitude. They did not. The court was misinformed. This should be taken into account.
My third argument is where the learned judge cities a principle applicable in this case laid down by the Court of Criminal Appeal in the case of the people (Attorney General) v. Michael O'Driscoll and Thomas O'Driscoll, reported in judgments of the Court of Criminal Appeal, Volume 1, page 351. In delivering the judgment in that case, Mr. Justice Walshe stated:
The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public  interest would be best served if the criminal could be induced to take the latter course.
There are three important principles there. It is not that there was any malice on the part of any of the courts. The case in question is an unfortunate one. I would humbly ask the Minister to take these matters into consideration and not to close off the possibility of discussion even if he is unable to do anything for me today. It is important that this man who is highly intelligent and has a family should be given some hope. I would like to make this point because it is a human matter. Every single week this woman telephones me from a telephone box in the wilds of Mayo and waits in the cold sometimes for 20 minutes if I am speaking in the House, for me to call back. Her children are pathetic with regard to how they miss their father. I ask the Minister if he can at all to do something in this case.
There are obvious constraints on what a Minister for Justice can, with propriety, say publicly about the administration of an individual prisoner's sentence. Leaving aside quite proper obligations of confidentiality in relation to an individual prisoner's affairs it would obviously not be practical nor in the best interests of the prisoner concerned for us to argue across the Floor of the House about the pros and cons of a particular case. I can assure the Senator, however, that if he felt there would be any benefit to be gained from discussing this case in confidence with myself, the Minister for Justice or a senior official from the prisons division of my Department I would be happy to arrange this.
The House will be aware that towards the end of 1989 the Minister for Justice established, under the chairmanship of Dr. T.K. Whitaker, the sentence review group. The purpose of the group is to  advise the Minister in relation to the administration of long term prison sentences. With the exception of capital murderers all offenders who have served a term of seven years or more of a current sentence may, if they so wish, have their cases considered by the group.
The criteria by which cases are considered are: whether a release would constitute a threat to the community; whether it is reasonable to grant temporary release at this particular stage in view of the nature of the crime committed; whether the offender merits temporary release having regard to his behaviour while in prison; and whether there are any compassionate grounds which warrant special consideration.
As Senator Norris is aware, the sentence details of the prisoner whose case he mentioned are quite complicated. However, the net position is that the prisoner is serving a 12 year sentence which took effect from February, 1987 and a 14 year sentence from May, 1988. In these circumstances he would, strictly speaking, not qualify for consideration by the sentence review group until February, 1994. However, the Minister for Justice is prepared in the complicated circumstances of the sentences in this case to take into account the time this person spent in custody between January, 1984 and May, 1988 as counting towards the seven years required to qualify for consideration by the group. When allowance is made for the six months he spent on bail during that period following the quashing of the original convictions, this would mean that the case would fall to be considered by the group towards the middle of this year.
It is, of course, open to the Minister to review the case of an offender serving long sentences at any stage without reference to the sentence review group. I have to say, however, that exceptional circumstances would have to exist before the Minister for Justice would consider such a course of action to be warranted and no grounds have been put forward which would enable the Minister for Justice to conclude that such circumstances exist in this case. In particular he must  have regard to the horrendous nature of the offences involving as they did attacks on two elderly and defenceless brothers in the west of Ireland, one of whom died immediately and the other a few days later.
It is the case that two others involved in the attack received shorter sentences. It is also the case, however, that another person involved in the attack received a life sentence as well as fixed sentences, the longest of which was 15 years. The House will appreciate that it is a matter for the courts to determine the appropriate level of sentence having heard all the evidence and taking into account all the circumstances of a case. There is, of course, in those circumstances no basis for an assumption that as a matter of equity the same sentences must be imposed on all the people involved in a particular incident. There can be little doubt that the life sentence for manslaughter imposed in the case of the prisoner referred to by the Senator after the retrial was intended to reflect the very grave view taken by the court of the prisoner's role in the incident, as was the subsequent substitution of a 14 year penalty by the Supreme Court. In all the circumstances, and particularly having regard to the nature of the offences, there is no basis for the Minister for Justice to take the view that the sentence was excessively severe.
I should explain that one of the reasons which has prevented the Minister for Justice issuing a definitive reply to earlier representations the Senator made about this case was that the case of one of the co-accused of the prisoner referred to by the Senator has already qualified to be considered by the sentence review group as seven years of a current sentence had been served. A decision on the outcome of the review will be communicated shortly to the co-accused. We will look again at the case referred to by the Senator to see if that decision might have any implications for it. While the decision made in the case of the co-accused may have some relevance to the case referred to by the Senator we would, in fairness,  have to caution against building up any positive expectations in that regard.
Again, I might mention that if the Senator feels there would be any benefit in meeting with myself, the Minister for Justice or a senior official from the prisons division of my Department I would be happy to arrange this.
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