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.

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

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.

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.

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

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