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But the essential point of difference between the Irish and English legislation is that the
English legislation allowed for the making of a community service order in respect of an
“imprisonable offence” whereas the Irish legislation required the immediate contemplation
of custody before a community service order can be made. Thus the English revocation
proceedings are consistent with an original wide discretion when making a community
service order whereas the Irish legislation certainly is not. The importation of the phrase
“in any manner” from the English legislation gives the Irish court an expansive discretion
when dealing with breach and revocation of community service but it does not shift the
original basis upon which an Irish court must structure the making of the community
service order i.e. in lieu of custody. The prescient words of DeputyKellymust be recalled
when he cautioned against copying legislation from other jurisdictions when one considers
the apparent contradictions contained in Section 2 and Section 7, 8 and 11 of the Criminal
Justice (Community Service) Act 1983. By any reasonable interpretation, a wide ranging
discretion unwittingly imported from Section 17(3) of the English legislation into the Irish
Act appears to undermine the purpose of the community service order as a penalty
designedto act as an alternative to custody.
Section 4 is a very interesting section. Section 4(1) (a) is a subtle variation on the English
section which provides:
Section 15
(2) A Court shall not make a community service order in respect of
anyoffender unless the offender consents andthe Court –
(b) is satisfied
i. after considering a report by a probation officer about the
offender and his circumstances and, if the Court thinks it
necessary, hearinga probation officer, that the offender is a
suitable person to perform work under such an order; and
ii. that provision can be made under the arrangements for
himto do so.
But the position of the word “report” in the Irish section changes entirely the requirement
to provide a report of an extensive nature on the offender’s “circumstances” and limits the
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