The Gazette 1971

LECTURES

The Principles of Sentencing Professor Rupert Cross, LL.D., Solicitor, of Oxford University, delivered a public lecture on "The Tariff System of Sentencing" in Trinity College, Dublin, on 12th February 1971. The Hon. Mr. Justice Walsh presided. Professor Cross said that, on the whole, Irish judges imposed lighter sentences than English ones and there was a tendency to have a tarriff system based on the gravity of offences. He was publishing a book on The English Sentencing System in May, which was based on a questionnaire addressed to judges. The tarriff system inevitably admitted a large discretion on the part of judges, subject only that the maximum sentence for a given offence should not be exceeded. In regard to the nature of the tarriff, say a period of imprisonment of from two to four years would be appro- priate for a particular crime, depending on the circum- stances; this was termed the "normal range of sentence". In rape cases, allowance had to be made for aggra- vating or mitigating circumstances. It is not wise to refer to the published "Criminal Statistics" to gauge the tarriff, as it does not represent the average case. Since 1962 judges of the Queen's Bench Divisions have two conferences a year, presided over by the Lord Chief Justice, and as a result, the judges get a rough idea of the appropriate range of sentence for a parti- cular crime; unfortunately this remains secret and is not published.

the length of sentences were fixed, it would necessarily entail empirical generalisations which would not work. Judge Should Study Methods of Punishment Mr. Justice Walsh said that the great defect in our present criminal trial procedure was that while the judge has by his whole training as a lawyer been thoroughly equipped to deal with the question of proving whether the accused is or is not a thief he has not received any training about what to do with him when that fact has been established. Without a thorough knowledge of what different forms of treatment or types of impris- onment or conditions of imprisonment or other forms of punishment are available, how can he hope to achieve a penalty or a sentence which will have the greatest reformative effect on the particular individual before him. In the United States, special seminars are held on this very question and federal trial judges are equipped with a desk book which contains a great deal of valu- able information on the whole topic and which is designed to assist them in this field. In this country, where sentencing is a function reserved by the Consti- tution to the judiciary, it is idle to talk of setting up special expert sentencing boards and, therefore, the trial judge is the one who must be educated in this field. It is doubtful if more than a small minority of trial judges have ever seen the inside of a prison let alone have any detailed knowledge of the working of the penal system. Pre-sentencing investigation is of the greatest impor- tance. The sentencing judge should be furnished with full information on the social, economic and religious background of the person to be sentenced and on his habits and interests. Because of the wide discretion allowed to our judges in the matter of sentencing (unlike their continental brethren who, by training, are condi- tioned by the classical crime-punishment equation) this information is necessary to enable an objective assess- ment to be made of the type of sentence which the case calls for. It would be idle to pretend that judges cannot and are not influenced in their sentences by their own socio-economic background.

Retributive and Utilitarian Methods of Punishment In considering the gravity of the offences, the judges will have to contrast the mere retributive methods as opposed to the utilitarian methods of punishment. Such questions as the fact that a bank robber is a greater social menace, or that society disapproves of students who show their antagonism by wrecking the Garden House Hotel in Cambridge deserve consideration. As regards the harm done, wounding with intent is un- doubtedly more heinous than malicious wounding. The prevalence of an offence in itself will render it graver. This tarriff system is quite unscientific, and the range of sentences imposed can only be impressionistic. The notion of gravity must needs be a woolly one, and, if

Compensation without Litigation The inaugural address was delivered to the Dublin University Law Society by the Auditor, Mr. Justin McCarthy, on Friday, 19th February 1971, on "Com- pensation without Litigation". Professor C. B. McKenna presided.

compensation and the establishment of fault or negli- gence are not natural bedfellows. The time has come for a divorce of these two concepts and a reassessment of the part played by each. Two points had to be considered. Firstly, in the majority of claims for personal injuries, the issue is not one between individual and individual but between the indivdual and the insurer, while the injured individual may suffer great loss, the compensating insurer distri- butes the loss over society in general. Secondly, compen- sation can be paid regardless of fault to those injured 45

Mr. McCarthy said that the reform of our system whereby we onlv pay compensation to the injured victim of an accident who can prove that his injury is due to the negligent, or intentional, conduct of another is overdue. It is hoped to show that the payment of