The Gazette 1983

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. •