223 / 432
GAZETTE
St r i k i ng a Balance on Sent enc i ng
MWH
JUNE 1994
Addressing a seminar on
Sentencing a
Criminal Cases - Striking a Balance,
organised by the Dublin Solicitors Bar
Association, on 15 April, the Minister
of State at the Department of Justice,
Willie O'Dea TD,
said: "sentencing is
by no means an exact science and it
never will be possible to have absolute
uniformity in sentencing. What is
possible and very desirable is to
achieve a reasonable measure of
consistency."
Media stimulating fear of crime
Addressing the seminar, Dublin
solicitor,
Garrett Sheehan,
discussed
the notion that there was no coherent
sentencing policy. He referred to case
law which underlined the importance
of the discretion of the trial judge and
which held that, under the
constitutional separation of powers,
the discretion to select punishment
should not be in the hands of the
Executive.
Media reporting, which included
attacks on the judiciary, could have
the effect of undermining confidence
in the judicial system. In his opinion,
it was regrettable that the judiciary did
not respond. He noted that in England
the Lord Chancellor did so on
occasion. He suggested there were
good arguments in favour of the Irish
judiciary appointing a senior
spokesman who, in appropriate
circumstances, would provide an
explanation of the reasoning behind a
sentence.
Garrett Sheehan noted that a recent
publication by
Paul O'Mahony, Crime
and Punishment in Ireland,
had
questioned whether the public's
beliefs and perceptions in relation to
crime reflected the reality.
He also recalled an article in
Magill
magazine which had put forward the
thesis that some politicians had an
electoral interest in keeping crime on
the agenda. He questioned whether
certain sections of the media were
using crime to sell newspapers and
whether an inevitable result of
programmes such as
Crimeline
was to
exacerbate the public's fear and
concern about the level of crime.
Right to silence no longer necessary
Addressing the seminar,
Frank Martin
SC,
former Judge of the Circuit Court,
said that there were three common
perceptions among the public. The
first was a belief that the level of
crime was so high that people could
no longer walk the streets without
fear. Secondly, there was a perception
that the police were ineffective when
it came to solving crime. The police
were required to solve crime with
their hands tied behind their back and,
he said, the time had come to remove
the right to silence, which was a
product of a different age. Now, with
facilities to videotape interviews and
with an accused's right to have a
solicitor present, there was no need to
retain the right to silence. The third
perception was that judges were too
lenient. Mr. Martin asked the question
whether these perceptions were
media-driven. He said the media had a
difficult job. They had to cope with
limitations of time and space; for
example, a case that might have taken
two days to determine would be
reported in a couple of paragraphs.
This was a very grave responsibility.
On occasions, the media went off on a
tangent and recent criticisms of
particular sentences had been less than
accurate or fair. For example, it was
often reported that a case was
dismissed on a 'technicality'. "What is
a 'technicality?' Everyone has a right
to have their case heard in accordance
with law. It might be no pleasure to a
judge to have to dismiss a case, if say,
the State failed in an essential proof.
However, an accused has a right to
trial in accordance with law."
A sentencing policy that was aimed at
achieving uniformity and consistency
was a nonsense and a recipe for
injustice because no two cases were
the same, said the former Judge.
Alternatives to Prison
In her address to the seminar,
Emer
Hanna,
Senior Probation and Welfare
Officer, said that, over the last decade,
an acknowledgement that
imprisonment was expensive,
ineffective in a rehabilitive sense and,
indeed, often counter productive, had
lead to a questioning of the use of
imprisonment. "I believe we would
have more chance of striking a
balance on sentencing if we saw
imprisonment as one option along a
continuum of options open to judges,
instead of seeing alternatives to
custody and prison as diametrically
opposed." She described four
alternatives to prison provided by the
Probation Service, i.e. probation,
adjourned supervision, the intensive
probation scheme and community
service orders.
Ms. Hanna said "economic factors
have played a part in the
establishment of alternatives to
custody as community-based
alternatives are considerably cheaper
than incarceration. A positive spin-off
of these alternatives is that schemes
like community service orders,
probation and intensive probation do
seem to be effective in reducing
offending behaviour. Where this is the
case I believe we must expand and
develop these services."
Judicial Studies Board
Tom O'Malley,
lecturer in law at
UCG, made a wide-ranging address to
the seminar dealing with the policies
that should guide punishment, reforms
which could be undertaken to assist in
the development of a more coherent
and rational sentencing framework
and the strategies available for
structuring judicial sentencing
discretion.
199