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custodial penalties. As previously observed from the survey, sentencers generally endorse
such an approach. Walsh andSexton in their studyin 1999 reported:
… One Judge openly acknowledged that he was not favourably disposed to the use
of CSOs because he felt that the requirements imposed on their use bythe 1983 Act
were too restrictive (Walsh andSexton 1999:68).
Although Walsh and Sexton did not elucidate on the nature of the “restrictions” which the
Judge referred to, it is reasonable to assume from the context of the paragraph that these
restrictions refer to the coupling of community service with custodial cases only. 43 There
is no indication in this reply (Walsh and Sexton 1999) to show that the respondent was
favourable to the use of the community service order as an alternative to custody. The
judge in question appears not to accept the proposition that a custodial sentence couldever
be substituted by a community service order as provided by Sections 2&3 of the Criminal
Justice (CommunityService) Act 1983. In the present studysome of the judges interviewed
did evince a reluctance to substitute a custodial sentence with communityservice especially
for indictable offences. The reluctance of some judges to utilise the sanction at all (Petrus
VFM 2009:38-41) may be due to a number of factors but the sentiment of the respondent
judge in the Walsh and Sexton studyabove suggests that a significant number of judges do
not regard the sanction as a realistic alternative to the custodial sentence and would onlybe
prepared to use it as a penalty if it was available in its own right and specifically not as an
alternative to a real custodial sentence.
The final report of the Expert Group on the Probation Service (1999) made a number of
recommendations on community service, including, combination orders of community
service and probation orders in one order (Expert Group 1999:par. 2.9) and having
expressed satisfaction with the workings of the community service order, subject to the
comments made in the first report (that the Probation Service provide insurance for
schemes andnot the voluntaryagencies) recommended:
… that such orders should be available as both an alternative to imprisonment and
as a sanction in its own right. However, the Group are of the view that the
imposition of a community service order as a sanction in its own right should be
43 Perhaps the judge in question didnot believe acustodial sentence shouldbe substitutedbycommunityservice at all?
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