The Director of Public Prosecutions yesterday described the minimum mandatory sentence for drugs offences as a rather crude instrument that had created problems for judges.
In a rare interview, the DPP, James Hamilton, said that he preferred judges rather than legislators setting sentencing guidelines or tariffs.
"I think that judges try to find ways of doing justice in the individual case. [ The current law does not provide for] a true mandatory sentence. There is a discretion left to the judge," he said.
Mr Hamilton, speaking on RTÉ's Drivetime, also said that he was not in favour of separate representation for victims in criminal cases on the basis that the trial was a matter between the State and the suspect.
In one of the most in-depth interviews with Mr Hamilton since he became DPP almost a decade ago, he expressed forthright views on sentencing and the rights of victims, without specifically referring to any case.
He said the Court of Criminal Appeal's decision that victim impact statements, such as the one made by Majella Holohan, which do not stick to the agreed text should be treated as contempt of court was a "rather drastic solution". He said he would prefer if the judge made an order to prohibit publication.
Asked whether tariffs should be imposed on judges by the Oireachtas, Mr Hamilton said: "I think there's a need for the judges to do this themselves. And at least to set out what the starting point is before the mitigating and aggravating circumstances [ are taken into account].
"They have done that to a certain extent. A recent judgment in the High Court by Judge Peter Charleton has set out a table of rape cases heard and classified them according to the sentence passed and whether they were at the low end, middle, or high end of the range. And that's been an extremely useful tool to us and to the courts."
His views on minimum mandatory sentences are at odds with those of the main political parties, in particular Fianna Fáil, Fine Gael and the Progressive Democrats.
Mr Hamilton also spoke about his decision to seek submissions that could lead to a change in his office's long-standing policy of never giving reasons for its decisions. He said it would be difficult to do this without affecting the rights of other people, especially suspects who are not being prosecuted.
"The question is how far we can go. My own instinct is to be very cautious and to start with the more serious type of offence and see if we can do that," he said.
Later, he added: "What I would like to be able to do would be able to say, in whatever class of cases we decided upon, that [ we] could give a reason without casting a doubt on an identifiable suspect such as would cause them to be condemned by the public; or without disclosing the existence of a Garda informant; or of Garda investigation methods," he said.
He said that he hoped the changes could be made this year.
In relation to controversies that have arisen over the length of sentences - such as in the Mary Shannon rape case and the Wayne O'Donoghue case - Mr Hamilton accepted that there were always some surprises when it came to sentencing.
However, he added: "To put it into context, there are about 3,000 indictable cases heard every year. We appeal some 35 of them on grounds of undue leniency. We win about two-thirds of those [ by getting an increase or change in the sentence].
"That's a little over 1 per cent. The vast majority of cases heard, the sentence is well within the norms one would expect."
Fintan O'Toole: page 16
