View/Open - CORA - University College Cork

year community service was introduced, that the emphasis on prison overcrowding as a
rationale for the continued use of community service orders in 2001 has diminished.
Although the ratio of prisoners to a cell has not been reduced and continues at
unacceptable levels, the practice of shedding large groups of prisoners to make way for
newer committals from the courts had abated in 2001. 56 The issue of prison overcrowding
may be seen in a new light when the use of community service is no longer tied to any
custodial requirement. Prison overcrowding, as previously noted, provided a strong
impetus for the introduction of community service in Ireland. Overcrowding in places of
detention for juveniles remains acute to this day. One detects therefore a departure from
the crisis management approach to prison overcrowdingas a reason for the introduction of
this new style of community service order in the Children Act 2001. Instead of simply
substituting custody with community service orders for adult offenders, the courts may
now use community service orders for sixteen and seventeen year olds as a generalised
penalty.
It is argued in this study that the introduction of the sanction of community service under
Sections 115-116 of the Children Act 2001 as a community sanction which does not
require a prior custodial penalty presents major issues of interpretation which may
eventually render the inclusion of community service orders as a “community sanction”
inoperable. The main piece of legislation governing child welfare and juvenile justice for
the preceding century, the Children Act 1908, could be regarded as a progressive piece of
legislation for its time. However the newperspective underpinning the Children Act 2001
imports a whollynewwelfare paradigmundeveloped in the Edwardian era.
Before discussing the location of community service orders in the scheme of community
sanctions (Section 115) it is necessaryto discuss the policyobjectives behind the legislation,
introduced in an era, where internationally, penal welfarism was seen to be in positive
decline if not abandonment in respect of adult offenders. At a surface level, the Children
Act, 2001 evinces a policy of benign intervention and rehabilitation and this is certainly
identifiable in the speeches both of the Minister for Justice, Mr O’Donoghue and the
Minister of State for Children at the Department of Justice, Ms Hannafin in their
contributions to the Bill during its passage through the Dail and Senate. In particular the
56 However, in December 2008 adult prison capacity was at 114% with an extra 10% on temporary release. Capacity was equated with sleeping accommodation within the prison
includingsleepingon mattresses. (Department of Justice EqualityandLawReform– personal communication 10th December 2008).
194