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INCORPORATED LAW SOCIETY OF IRELAND
GAZETTE
Vol. 77. No. 3
April 1983
Fit The Crime
I
N the furore which has greeted the decision of Mr Justice
Gannon to impose a suspensory sentence in the Fairview
Park manslaughter case, a number of important and relevant
issues have been confused and obscured.
Much of the comment is symptomatic of our collective
refusal to admit that those who commit crimes are actually
members of our own society. This is linked with the belief that
more Gardai, wider powers of arrest and questioning by the
police and stiffer sentences by our Judges would rid the
community of crime. Not only is increasing cnme a
phenomenon to be observed in other developed countries but,
historically, crime was high when punishments that even the
most vociferous "law and order" enthusiast would consider
barbarous were common.
.
This is not to say that there is not a need for a more efficient
and effective police force, as has been argued before in these
pages. Prisons, however, are no more a cure for the problem ot
crime than graveyards are for the problem of disease.
Custodial
sentences are
undoubtedly necessary forthose
who
commit serious or subversive crime, but there must be better
ways of dealing with the petty offender than the choice of a
fine or a prison sentence. The prison populations of most
Western European countries are well below those of Britain
and Ireland. The use of alternative sanctions, such as the
Community Service Orders, so belatedly recommended in
the June
1981
White Paper,
which are
about to be introduced,
should only be a beginning. There is, arguably, a case tor
imposing liability on parents for their childrens cnminal acts
The failure of prison systems as institutions of reform is well
established; committing young people to prison is likely to
increase the chances of them turning into full-time criminals
and is a confession of failure by society.
Consistency of punishment is the most empty ofthe catcn
cries which have been raised. It may be possible to apply tlus
concept at a fairly low level - i n the field of minor motonng
offences, for instance - though, even there, it is open to
severe question as to whether the same fine should
necessarily be imposed on all offenders, regardless of their
financial status. However in serious offences the sanction to
be imposed must reflect the particular circumstances ot eacn
individual case. Only two weeks before the FairviewPark
case, one of the Judge's colleagues did not impose a custodud
sentence on a young man who had been convicted ofthe same
crime (manslaughter). He had been convicted of the
manslaughter of his drunken father, following the last ot a
regular series of assaults by the father upon the accused s
mother.
. ..
„
The general reaction to the Judge's decision in the latter
case has been one of approval. If there were to be consistency
of sentencing and, as one of the lawyer members of the Dan
misguidely suggested, a mandatory pnson sentence tor
crimes involving death or bodily injury, the option so wisely
used in the earlier case would not have been available to the
Court.
It should be a principle of any system of criminal justice
that it is better that some people who may be guilty go free in
order to ensure that no innocent people may be punished. It
may appear as if the Judge erred in the Fairview Park case
but, ifhe did err, it was after several hours of hearing evidence
of character and representations as to sentence — little of
which was reported in most of the following day's national
newspapers and none at all in that which would consider itself
our prime daily journal.
While it may be natural for those who have not sat through
the hours of evidence and representations on behalf of the
accused to imply, as has been done, that in failing to impose a
custodial sentence the Judge was placing a seal ofapproval on
"Queer Bashing", such a conclusion is not necessarily fair. If
an assumption is to be made at all, it must be that the Judge
was doing no more than attempting to apply, to the best of his
ability, the principles of equity andjustice, having regard to all
the circumstances laid before him.
The case may however indicate a need in our Criminal
Court procedures for the Prosecution to play a more active
role at the post-conviction stage, when consideration is being
given to what the appropriate penalty should be. It may be
desirable that submissions be made at this stage, on behalf of
the Prosecution, which would reflect the Community's view
of the offence.
Our Judges have, since the inception of the State, served its
people well — far better than its Legislators have. Perhaps the
deplorable standard of the Dail debate which followed the
case may be just anotjier symptom of the politicians' disease
of maintaining a high profile on any subjects, save those with
which they ought to be most concerned, such as the country's
present economic difficulties, but that is only an explanation
and not an excuse. It seemed as if Deputies were vying with
each other in advocating punitive sanctions, almost regretting
that transportation is no longer available as a punishment It is
not the duty of politicians merely to echo each popular catch
cry; they have an obligation to lead public opinion and to
persuade the community that the solution to the problem of
crime lies largely in the hands of the community itself. The
causes of crime may be manifold, but it is the community
alone which can help to reduce the incidence of crime by
tackling its causes.
The Fairview Park case has, however, highlighted the
veracity of the old adage that not only must justice be done,
but it must be seen to be done. The Judge, in the interest of
avoiding the contumely which has attended his sentence,
could have explained in greater detail why, having
emphasised the gravity of the offence, he elected to suspend
the sentence. •