View/Open - CORA - University College Cork

A report as to suitability for community service should be comprehensive, it is argued, if
the finding of the report is that the offender is unsuitable. The offender is entitled to know
in detail whyshe/he is deemed unsuitable and is nowto face a custodial sentence (DPP-v-
Timothy Nelligan, Cork District Court, 19 th April 2008, Irish Examiner, case under appeal
on this point)
As previously mentioned in Chapter 2, the probation officer’s training as a social worker
found resistance to the new penalty of community service where punishment was the
primaryaim of the sanction. The punitive role of communityservice is accentuated in the
Irish community service order for adults in light of the requirement that the community
service order could only be made in lieu of an immediate custodial penalty. One can only
speculate that the juxtaposition of the word “report” in the Irish legislation, to exclude the
necessityof a social enquiryreport was intended to limit the function of the Irish probation
officer in the preparation of suitability reports to the narrow role of penal agent of the
court, a function which challenged the traditional social worker paradigm of the service
(Halton 1992, 2007).
Notwithstanding the administrative guidance offered to the Irish probation officer in the
booklet The Management of the CommunityService Order (1998) it is not necessaryto provide in
the report to the Court itself all the information gleaned in the assessment, by way of a
social enquiry report; all that is required is a positive or negative indication as to the
suitabilityof the offender to performcommunityservice andthat such work is available.
The issue of Consent
Section 4(1)(b) requires the prior consent of the offender to be given before the court can
make a communityservice order. Although the issue of consent was discussed in Chapter
1, the practical expression of consent by offenders was observed by Walsh and Sexton in
the court survey(1999) as follows:
For the most part the accused were silent throughout, apart from two cases in
Dublin where they spoke up to decline the option of a CSO. In none of the cases
did the accused give an audible consent when asked by the Judge. In one case a
CSO was imposedon the accusedin his absence. (Walsh andSexton 1999:70).
149