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While the legislation and regulations are silent as to how the offender is to articulate his
consent, there are potentially three avenues through which the offender can communicate
his consent. Firstly, it is customary for the probation officer to indicate the consent or
willingness of the offender to perform the community service in the report although the
report may not usually be read out in open Court. Secondly, a Judge usually asks the
offender directly in open court to give an indication of his consent to perform the
community service and this invariably is given, otherwise, if consent is not indicated when
requested, the court simply cannot make the order. Finally, the defence solicitor will
usuallyalso communicate his client’s consent when the court initiallycontemplates making
a community service order and before a report is commissioned from the probation and
welfare officer. Courts generallyare reluctant to commission a report from the Probation
Service if consent is not forthcoming at this initial stage. Usually defendants are
represented under the criminal legal aid scheme by solicitors assigned to the panel for the
relevant Court. It is argued that legal aid is necessary for the defence of any accused
person given a community service order under the Supreme Court ruling in the State
(Healy) – v – O`Donoghue [1976] I.R. (3-5) which has effectivelydetermined that the right
to criminal legal aid is, in circumstances which are quite wide in practice, a constitutional
right. The Supreme Court indicated that legal aid services should be provided to persons
facing serious charges which could result in the loss of their liberty. As communityservice
orders can only be made in lieu of imprisonment, there and then contemplated by a
sentencing court, it is argued that no person should be given a community service order
without having legal representation both for the substantive trial and the sentencing trial.
In practice, the ruling in the State (Healy) – v – Donoghue of granting legal aid to indigent
offenders applies to in excess of ninety-five percent of all cases tried in the Irish criminal
courts (Criminal Legal Aid ReviewCommittee 1999).
A much more fundamental matter arises when one asks “what is the defendant consenting
to do?” Although the Act provides that community service should only be contemplated
and used in cases where an immediate custodial penalty is in prospect, the legislation does
not oblige the court to specify the alternative custodial penalty in specific terms, for
example, one hundred and twenty hours community service in lieu of six months
imprisonment. When the Criminal Justice (CommunityService) Bill was discussed in great
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