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service order must specify the alternative period of custody on its face in order to show
jurisdiction. This would appear to be so irrespective of which level of criminal jurisdiction
is beingexercised. 40
If a court was to impose a community service order on an offender without specifying in
advance the exact period of custodyin lieu to be served, it is arguable that an offender may
be precluded from making an optimal rational choice if she/he is not given the full details
of the “contract” to be entered into between her/himself and the Court, i.e. the
performance of X number hours Community Service in lieu of Y months imprisonment.
This issue was examined in Chapter 1 with reference to the imposition of community
service where the offence in England and Wales is an “imprisonable offence” but where
the alternative penaltymayindeedupon breach be substitutedbya fine. 41
Senator O’Leary in the Third Stage Debate on the Criminal Justice (Community Service)
Bill had the following astute observation to make. He observed that quite often a prison
sentence is threatened in Court by a District Justice when he has no real intention of
carrying it out. He stressed that the dividing line between a fine and a prison sentence in
realityis verythin. (Senate Debates, vol . 101, cols. 874-875, 7 th July, 1983).
It is not possible, from studies conducted to date, to ascertain with any degree of certainty
whether sentencers punish offenders with community service without intending to apply
custodial sentences in their stead. Walsh and Sexton (1999) do claim however to have
provided such evidence based on interviews with probation officers and surveys of
community service orders matched against certain offences. In particular, one District
Court area surveyed showed a liberal use of community service orders for first time drink-
driving offences. It is argued here that this limited information cannot be put forward as
evidence of inappropriate use of community service, unless it is shown that the same
40 In People (D.P.P.) –v- James O’Reilly, (Court of Criminal Appeal unreported11 December 2007) the court imposedacommunityservice order upon the offender who was convicted
of dangerous drivingcausingdeath. The order on file in the Court of Criminal Appeal recites: “Quash sentence and impose in lieu 240 hours communityservice order, to be listed in
6 months time to ensure compliance, affirm6 years disqualification order” (examinedbywriter). The use of the phrase “in lieu” does not necessarilymean that the communityservice
order was imposedin direct substitution for acustodial sentence as the court in its judgement was clearlynever mindedto impose acustodial sentence in the first place. The court had
been petitionedbythe D.P.P. to overturn asuspendedsentence originallyimposedon the grounds that it was too lenient andhadno general deterrent effect. It is difficult to reconcile
the formof communityservice used in this case with the requirements of Section 2 of the 1983 Act which requires the prior contemplation of an actual custodial sentence. Arguably,
this would exclude the consideration of a suspended sentence which clearly the court was also not minded to impose. A similar approach was taken by the same court in People
(D.P.P.) –v- AndrewKeogh, Court of Criminal Appeal (extempore), 9th June 2008.
41 In Foley –v- Judge Murphy and DPP [2005] 3 I.R. 574, Dunne J. accepted that a specified term of imprisonment does not operate as a default punishment if the accused fails to
complete the community service order (O’Malley 2006:480-481). The court is empowered under section 7 of the Criminal Justice (Community Service) Act 1983 to impose a fine
without prejudice to the continuation in force of the communityservice order. Alternatively, the court mayrevoke the order anddeal with the offender in anymanner (section 8) as if
the communityservice order hadnot been made initially. This latter provision does not necessarilypresuppose the imposition of acustodial sentence upon breach.
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