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accordance with the subsequent provisions of this Act for such number of
hours (being in the aggregate not less than forty nor more than two hundred
andforty) as maybe specifiedin the order. (myemphasis added).
However, the phrase “… insteadof dealingwith him in anyother way,…” has a clear
coherence within section 15 of the English legislation, because it genuinelyrefers to the
real discretion containedin section 15 for sentencers in EnglandandWales, to impose a
communityservice order for an offence subject onlyto the proviso that the offence is “…
punishable with imprisonment …” (section 15 Criminal Justice Act, 1972). There is no
condition precedent that the sentencer must have an immediate custodial sentence in
contemplation as is the case with suspended sentences in England andWales (R –v-
O’Keefe [1969] 2 Q.B.29). The sentencer in EnglandandWales mayequallyimpose a
fine if she/he is so minded when consideringcommunityservice, notwithstandingthat the
offence is punishable with imprisonment.
The process of policytransference which ledto the introduction of communityservice orders
into Irelandin 1983 was subject to certain pitfalls which were not clearlycontemplatedor
anticipatedwhen drafting the Criminal Justice (CommunityService) Bill, 1983. Bysetting
out a clear policyof using communityservice onlyin substitution for custodial sentences,
the Minister for Justice refuseda series of amendments which wouldhave allowedthe
courts to impose communityservice orders in cases where custodywas not in
contemplation. However, section 2 of the 1983 Act disallowedthat possibility, but
notwithstanding this policyposition maintainedbythe Minister, section 3 of the 1983 Act
importeda critical phrase fromthe seminal English legislation which was quite unnecessary
to give the enablingsection full effect. The inclusion of the phrase appears to have the
undesirable result of allowingfurther penal legislation, such as the Children Act 2001, to be
influencedbythe inclusion of such phrase to the effect that courts are nowempoweredto
impose communityservice orders on sixteen and seventeen year olds without the
restrictive effect of section 2 of the 1983 Act. However, section 2 of the 1983 Act holds
firm to its prescriptive and limiting role on the imposition of communityservice orders and
anyattempt to expand the use of communityservice orders as set out in sections 110, 115
and116 of the Children Act 2001 without appropriate amendment of section 2 of the 1983
Act is fundamentallyflawed. The inclusion of the phrase “… insteadof dealingwith him
in anyother way, …” in section 3 of the 1983 Act to some extent ran counter to and
lackedfidelityto the policyset out in section 2 of that Act, but the inclusion of such phrase
notwithstanding, couldnot damage the working of the 1983 Act because section 2 was so
unambiguous anddefinitive. A literal readingof section 115(a) of the Children Act 2001
suggests that the court has unbridleddiscretion to impose a communityservice order on a
sixteen or seventeen year oldprovidedthe offender is merelyguiltyof an offence and
further provided that he/she gives his/her consent (section 116, SS 3). Such a readingof
section 115(a) without reference to section 2 of the 1983 Act mayleadone into serious
error.
NEW CRITERIA FOR IMPOSITION OF COMMUNITY SANCTION
INCLUDING A COMMUNITY SERVICE ORDER
Anyattempt to understandthe relocation of communityservice orders in the Children Act
2001 must commence with an analysis of the legislation as it passed through the legislative
process in the Oireachtas. When speakingon the function of CommunitySanctions in the
scheme of penalties, DeputyMichael Ahern put it thus:
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