Ad hoc rules need reform
on 26/09/2012 00:00:00
Two recent cases illustrate the point. Last month, businessman Anthony Lyons received a six-year sentence, of which five-and-a-half years were suspended, for the sexual assault of a young woman in Dublin. The sentence was greeted with outrage in many quarters, and is being appealed by the DPP.
Elsewhere, another businessman, Paul Begley, was imprisoned for six years for perpetrating a fraud on the importation of garlic to the value of €1.6m. Again, there was high indignation in some quarters, this time over the perceived severity of the sentence. That is also being appealed.
On Monday, a comprehensive report in the Irish Examiner pointed to an inconsistent, and, from the point of view of victims, unsatisfactory, record in sentencing for crimes such as possession of child pornography.
The above cases have one matter in common. When victims and the wider public perceive a sentence to be unjust, confidence drains from the criminal justice system. More often than not, there are perfectly logical and reasonable arguments for the handing down of a controversial sentence, but little effort is spent on getting that message across. Shorn of public confidence, the system heads into serious danger. If justice isn't seen to be done, then it's not getting done in one vital facet.
Last week, a vision of a different approach to sentencing was offered in a lecture organised by the Irish Penal Reform Trust. Justice Colman Treacy is one of the top appeal court judges in Britain, although, as he told the audience at the lecture in Kilmainham Gaol, he was born in Dublin.
He is a member of the Sentencing Council in Britain. This body, made up of judges and others with expertise in policing, prosecuting, and representing victims, is charged with drafting sentencing guidelines for courts.
"The council's aims in drafting sentencing guidelines include not only promoting a consistent approach to sentencing, but also endeavouring to improve the public's understanding of the process involved in sentencing offenders and the likely outcomes," he said. "In other words, we want to demystify sentencing and get the public to understand what we are doing in their name and why."
In contrast to this jurisdiction, there is a specific body which proactively attempts to inject confidence into the system by explaining rationale behind sentences.
Here, judges only really do any explaining after they retire. There is a good reason behind this, but in the absence of a specific body, a dangerous vacuum pertains. Lawyers and legal academics do attempt to explain sentencing, but by its nature this approach is haphazard, uneven, and dependent on individual opinion.
In Britain, detailed research is undertaken by the sentencing council. The council has instigated a number of initiatives such as the Crown Court sentencing survey, which asks judges in thousands of courts to complete a short form every time they pass sentence. The survey is compiled and used to formulate guidelines on sentencing. The results are also published to improve public confidence that judges are sentencing rationally.
A number of factors are taken into account in formulating guidelines.
"The council has a very real role to play in undertaking research and analysis," said Treacy, "as it is required not only to report on the resource impact of the guidelines it drafts and issues, but also to monitor their use. It will also report on the cost of different sentences and their relative effectiveness in preventing reoffending."
In court, judges are obliged to follow the guidelines under law, "except when it is in the interest of judges not to do so".
"Judges are also obliged to give reasons when departing from the guideline and in explaining how a sentence is arrived at." Thus, a modicum of consistency develops.
For instance, an offence could be divided down into categories, depending on seriousness, co-operation, factors aggravating, and mitigating the crime. Once a judge identifies a category into which a particular offence falls, he or she has a range of sentences in which to operate. Departure from that range must be accompanied by reasons for doing so.
In some ways, as Treacy says, the guidelines are in wide use by judges accustomed by experience to taking these factors into account. But having specific rules does make for greater constituency, and removes the likelihood of a maverick skewing the concept of justice.
Treacy emphasised the importance of the public buying into the reasons and processes behind sentencing.
"The findings of various surveys often report that members of the public believe that sentencing is lenient. This is frequently as a result of low levels of knowledge of the criminal justice system which can be fuelled by the media.
"However, what is clear is that when the public are given details of criminal cases and are made aware of the process that judges and magistrates follow when sentencing, the public's sentencing decisions are much closer to the sentences actually passed, and in some cases are more lenient."
The council makes a point of bringing the process out to the public.
"Although we do not comment on individual cases, the office is developing strong links with local media to increase public understanding of the sentencing process and raise awareness of its work."
Treacy gave one example of this work. In July last year, the council worked with the Liverpool Echo to run an event for the public to meet its members to discuss sentencing issues and the consultation. The issue up for discussion was burglary.
"Around 200 people attended this event. But we were able to reach even more people that this by linking the event to coverage in the Liverpool Echo, which has a readership of over 85,000.
"A number of hypothetical burglary sentencing scenarios were presented by members of the office, with attendees asked to choose which sentence from four options they would give the offender in each case. The use of Who Wants to be a Millionaire-style voting buttons which were given to the attendees were a big hit."
The approach in Britain to sentencing and informing the public about it contrasts wildly to what goes on here. Here, guidelines are followed in something of an ad hoc manner from judgments handed down in appeal courts. Judge Paul Carney, who presides over the Central Criminal Court, has frequently questioned how the Court of Criminal Appeal has arrived at decisions which then form guidelines.
The Law Reform Commission does undertake research, but its reports are also treated in an ad hoc manner.
Typically, debate about sentencing in the public square follows a beaten path over the last decade. A crime, usually of extreme violence involving killing or severely injuring a victim, is detected. Understandable emotional reaction ensues, but therein elements of the media and politics use the occasion to propagate the notion that such crimes can be attributed to a lenient approach to crime in the courts.
Cue calls for the answer to all the ills of violent crime - the mandatory sentence. If courts apply a mandatory prison sentence, then criminals will think twice about perpetrating outrages. So goes the Greek chorus from the law and order brigade.
As such, mandatory sentences have evolved into a political tool rather than an instrument of the criminal justice system. Right now, there are so-called mandatory sentences in place for a range of offences from drugs to knife and gun possession.
The failure of judges to apply the mandatory sentence for drugs offences was a long-standing controversy among politicians for most of the last decade. The law came into effect in 1999 in which a ten-year, mandatory, minimum sentence was to be handed out for possession of drugs to a value greater than €12,700, except in exceptional circumstances.
When judges frequently invoked the special circumstances, politicians cried foul. Notably, no political party ever conducted detailed research into the circumstances in which sentences less than the stipulated 10 years were handed out. To do so might have illustrated why these decisions were being made and would have meant surrendering the right to kick up blue murder about lenient sentences.
Beyond calls for mandatory sentences, there has been precious little debate on sentencing in this country.
The establishment of a body similar to Britain's Sentencing Council could, at the very least, increase confidence in the system and lead to greater consistency. And it doesn't cost an arm and a leg. Coleman pointed out that the council's budget is £1.54m (€1.92m) for the current year.
Moves to set up a similar body here would require a buy-in from judges, who would have to contribute to ongoing research - filling in sentencing forms - and would demand that they take a more liberal attitude to their notion of judicial independence. It would also require politicians to regard the matter of sentencing as something more than a handy tool to garner political capital by talking tough.
The payoff for both the judiciary and the body politic might be greater confidence in the system, and that is surely a vital element of any functioning democracy.