The Gazette 1994

GAZETTE

MWH JUNE 1994

St r i k i ng a Balance on Sent enc i ng

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." 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. Media stimulating fear of crime 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.

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." 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 Judicial Studies Board

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."

and the strategies available for structuring judicial sentencing discretion.

A sentencing policy that was aimed at achieving uniformity and consistency

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