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“The thirdobjective is to deal with the children foundguiltyof offences through the imposition of a communitysanction. The Minister has providedten community sanctions, eight of which are new. This gives great scope to make decisions that will not criminalise youngchildren”. DeputyMichael Ahern T.D., vol. 517 col. 787, Children Bill 1999 Second Stage 5 th April, 2000. The resultingsection 115 lists the communitysanctions as set out above (a) to (j) with the previouslyestablished communitysanctions of communityservice orders andprobation orders listedat (a) and (c) respectively. The manner in which these older dispositions are set out in the legislation has some significance especiallyin relation to communityservice orders. According to the legislators section 115 has the function of providingeight newly identifiedcommunitysanctions andreiterating the pre-existing“communitysanctions” of communityservice orders andprobation (DeputyMichael Ahern Dail Debates vol. 517, col. 787, Children Bill 1999, SecondStage). The pre-existingcommunitysanction of the probation order is listedat section 115(c) as an order under section 2 of the Act of 1907. This merelyhas the effect of marshallingthe probation order in a list of communitysanctions without amendment to the Act of 1907 andmore importantlywithout changing, in anyway, the character of a probation order merelybylisting such sanction andcategorisingit under the title of communitysanction under section 115. However, it is argued that the communityservice order – under section 3 of the 1983 Act didcertainlyundergo a significant change in character when it was includedwithout qualification or distinction in the menuor list of community sanctions under section 115 of the Children Act 2001. It is arguedhere that because communityservice orders are listed without distinction in section 115, the canon of construction iusdemgeneris yields an interpretation which obliges one to regardcommunity service orders as co-equal penalties with the other nine communitysanctions, which includes probation orders. If the intention of the legislature was to maintain communityservice orders as a discrete sanction subject to section 2 of the 1983 Act then communityservice orders wouldnot have been includedin a list of so-called“communitysanctions” where theycan be regardedas co-equal and of the same type. Additionally, section 115 appears to allowa court to make anycommunitysanction provided onlythe offender is guiltyof an offence. This wouldseemto indicate that not onlyis the higher Irish standardas prescribedbysection 2 of the 1983 Act abandoned, but the threshold set out in the original English legislation (Criminal Justice Act 1972, Section 15), is also demolishedwhere at least the offence in respect of which the penaltywas to be imposed hadto be “an imprisonable offence”. This raises the interesting question as to whether a seventeen year oldconvictedof intoxication under section 4 of the Criminal Justice (Public Order) Act 1994 (as amendedbySec.19 IntoxicatingLiquor Act 2008) couldbe given a communityservice order where the offence as set out in the statute provides for a monetarypenaltyonly. If this is correct then one can conclude that the penaltyof communityservice for sixteen and seventeen year olds as a sanction has been completelydemolishedandrebuilt in a fashion which is quite unlike anythingexperienced to date andwhich couldbe describedas potentiallymore punitive. The role of incarceration was mentioned widelythroughout the Oireachtas debates on the Children Bill 1999. The views of the Minister for Justice are alreadyreferredto earlier in 203
this chapter. The Minister of State at the Department of Justice with responsibilityfor children in supportingthe Minister for Justice put the purpose of the Bill thus: “the kernel of this user-friendlyBill is that it ensures that everyother penaltywill be contemplatedbefore prison is considered” Ms Hannafin, Minister of State, vol. 167, col. 498, Children Bill 1999, 20 th June, 2001, Second Stage). Andlater in the Senate, a government senator in a sweepingstatement put the question beyond doubt when she stated: “the thrust of this Bill is that children shouldnot be imprisoneduntil that is the only option left after all other communitybased measures have been triedandthen onlyif theyfail”, Senator Ormond, vol. 167, col. 516, Children Bill 1999, 20 th June, 2001, Senate Debate. In the Lower House DeputyMaloneyof the Opposition, while welcomingthe Bill and the new range of communitysanctions, positioned the penaltyof incarceration as the ultimate default penaltywhen he said: “I also recognise that anysystemdealingwith young offenders must retain the ultimate sanction of incarceration, but the Bill clearlyis based on the premise that this option should onlybe brought into playafter a range of communitybasedmeasures have been exhausted” DeputyMaloneyDail Debate, col. 134 Children Bill 1999, Second Stage, 5 th April, 2000 vol. 517. Support for the interpretation bySenator OrmondandDeputyMaloneymaybe foundin the Bill passed byboth houses of the Oireachtas and signedinto lawbythe President. Section 116 provides: Section 116. – (1) Where a court- (a) has considered a probation officer’s report or any other report made pursuant to this Part, (b) has heard the evidence of any person whose attendance it may have requested, including any person who made such a report, and (c) has given the child’s parent or guardian (or, if the child is married, his or her spouse), if present in court for the proceedings, or, if not so present, an adult relative of the child or other adult accompanying the child, an opportunity to give evidence, it may make an order imposing on the child a community sanction, if it considers that the imposition of such 204
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Title The role of the community ser
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DECLARATION The contents of this th
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Acknowledgements I wish to acknowle
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TABLE OF CONTENTS Declaration .....
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Activation Of The Suspended Sentenc
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from an assumed jurisdiction of the
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Probation Service. Instead each age
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these considerations are subject to
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not slow to inform the “naïve”
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the PhD programme. Notwithstanding
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One of the constant criticisms of t
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the year 2006 for a whole year surv
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the exigencies which presented befo
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eference solely to the function of
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In addition to the general, social
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having been exported from the Antip
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Any attempt to locate the origins o
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Hulks or Prison Ships The Act which
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Many of these commentators have arg
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The use of impressment must also be
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simultaneouslydivertingthe investig
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Wales rose during the same period d
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Thus, against this bleak background
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We do not think it is easyor wise t
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While these latter factors maybe se
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we consulted about the need for for
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taking of vehicles, for some of the
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character of the voluntary sector i
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The Bill was essentially structured
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As community service schemes were t
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significant debate in subsequent st
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imposed, must be described as punis
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this was provided for in sections 1
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(ii) PUNISHMENT Reference has alrea
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that by inserting offenders into su
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not be measured by the same criteri
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encountered by others less-fortunat
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participation do so for a very shor
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ehabilitative potential and such di
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into a relationship of mutual inter
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These issues were examined in this
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CHAPTER 2 COMMUNITY SERVICE ORDERS
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Some aspects of the new functions w
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1977:112). As will be seen later (C
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within one year. The inevitability
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characterised by some British proba
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turn. If the offender turns up and
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former court but not necessarily so
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imprisonment, the suspended sentenc
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not receive a custodial sentence. B
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inhibits any clear measurement of e
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were still significantly belowthe p
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Participation byan offender on comm
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In England and Wales the unknown ri
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unsatisfactory or unreasonable by S
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learned the limits to which theycou
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for non-compliance. Where the proba
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how do Judges deal with breach of c
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administration of the community ser
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control can have the effect of dive
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Manyresponded … byindicating that
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“I cannot think of anycase in whi
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CONCLUSION Throughout this chapter
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CHAPTER 3 “Laws, like houses, lea
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1986). Elements which were consider
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elationship between the host and re
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justice measure from Britain was id
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offences by recidivist offenders. 2
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eyond the area of offenders for who
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provide a significant element of re
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problems was seen as whollyinapprop
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softlysoftlyapproach adopted in the
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Thus the stage was set for somethin
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The White Paper set out a series of
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An amendment by Dr Michael Woods, T
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Andhe further suggested: Very often
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c) That under this Act the District
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These provisions empower the courts
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task of reporting on the defendant
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While the legislation and regulatio
Page 161 and 162: service order must specify the alte
Page 163 and 164: This reply identifies not only the
Page 165 and 166: the Probation Service to operationa
Page 167 and 168: Accordingly when the Probation Serv
Page 169 and 170: custodial penalties. As previously
Page 171 and 172: particularly in cases of drunk-driv
Page 173 and 174: this ranging from 63 hours to 11 ho
Page 175 and 176: made which provided for a substitut
Page 177 and 178: at each jurisdictional level. The D
Page 179 and 180: This view was reinforced in a study
Page 181 and 182: But when the relatively low level o
Page 183 and 184: “Definitelya term of imprisonment
Page 185 and 186: who might be suitable for it becaus
Page 187 and 188: The offender was presented in the r
Page 189 and 190: “I would be slow in crimes where
Page 191 and 192: Why is the sanction not used more o
Page 193 and 194: custodial or non-custodial, will be
Page 195 and 196: Perceptions by the Judges that fine
Page 197 and 198: Insofar as it is possible to discer
Page 199 and 200: e amended to delete the requirement
Page 201 and 202: allows a community service order to
Page 203 and 204: year community service was introduc
Page 205 and 206: anypenaltyimposedon a childfor an o
Page 207 and 208: Section 110 provides: 1) Where a co
Page 209 and 210: (a) the revocation of anylicence, (
Page 211: accordance with the subsequent prov
Page 215 and 216: An analysis of the wording that “
Page 217 and 218: andseventeen year olds will undoubt
Page 219 and 220: communityservice into two categorie
Page 221 and 222: standards for sixteen/seventeen yea
Page 223 and 224: disengagement fromthe former coloni
Page 225 and 226: formal imposition of a custodial se
Page 227 and 228: punishment where a threat of activa
Page 229 and 230: sessions (Hardiman 2004:5). By way
Page 231 and 232: Thus the suspended sentence is seen
Page 233 and 234: validity of the procedure as a sent
Page 235 and 236: present case”. (R-v-Wightman, 195
Page 237 and 238: policy of using the suspended sente
Page 239 and 240: to the emergence of agreement on pr
Page 241 and 242: sentence. In the Alexiou case, Murr
Page 243 and 244: deal with the suspendedin a statuto
Page 245 and 246: criminogenic circumstances which is
Page 247 and 248: sentence. Sequentially, a custodial
Page 249 and 250: cases it is not uncommon for the de
Page 251 and 252: “I don’t tend to favour suspend
Page 253 and 254: “If you have a person who has bee
Page 255 and 256: sentence andwhere suspension should
Page 257 and 258: “This is a very difficult one to
Page 259 and 260: But the “custodial” designation
Page 261 and 262: who got verylong suspended sentence
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which is reflectedin the suspendedt
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might otherwise be thought bythe pr
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that the suspended sentence contain
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would apply if an actual custodial
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and this would clearly be the case
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England and Wales. A practice of im
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generallyare reluctant to activate
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abandon” claims Osborough (1982:2
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The activation of the sentence is n
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normal way, allow you leniency, I w
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court had made no mention at the se
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Criminal Appeal, which were the cou
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Thus, the limited statutory review
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The bipolar arrangements of the cou
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specified period. For example, the
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It is worth noting that these sente
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mayfeel at libertyto continue with
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the court if the convicted person f
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maintain progress on a treatment pr
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himself/herself bound over for a lo
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of the District Court to enforce a
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Thus, the utility of suspending the
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other words, a suspended sentence o
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The net point is this - if the oper
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is kept, there is a complete discha
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nature such as conditions prohibiti
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“I think that if the condition is
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Thus it may be observed that the Di
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custodyas a primaryaim of the sente
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Whatever conclusions can be drawn f
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(v) The role of consent. In the cla
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sentence. Thus, the degree to which
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ate of suspended sentences to be 35
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category of offence was not provide
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of a breach of a condition. This is
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“Such a hearing should have been
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juryin the present case. He did not
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“… the only matters which this
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driving or public order and I would
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put forward this argument in his ap
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egime instead. Interestingly, in th
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And “Provision may be made by pri
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(Miscellaneous Provisions) Act 1997
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accused has served his/her custodia
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the Minister for Justice to exercis
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suspended sentence although it has
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(vi) Activation of sentence the piv
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In the Circuit Criminal Court and t
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sanctions have followed. This is bo
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CHAPTER 7 THE SUSPENDED SENTENCE PU
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It will also be demonstrated how th
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of the pre-existing power to suspen
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The Criminal Justice (Public Order)
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In terms of regulating the criminal
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suspended sentences in a statutory
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developed for the enforcement of a
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On a literal interpretation, the Oi
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enjoyed and practiced up to now. In
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portion of a part-suspended sentenc
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This control mechanism is construct
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sentence under Section 99(1) constr
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Although Section 50 (2) seeks to li
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As noted, the procedure under Secti
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CONDITIONS Besides the time element
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Generallyspeaking, the Legislature
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Besides placing the suspended sente
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ehaviour was clearly settled in the
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these agencies. But perhaps the mos
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Imposition of Fine and Deferment of
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courts, this may be too restrictive
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for a minor infraction of not keepi
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acquire certain dynamic characteris
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on this issue. Strictly speaking on
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instead of a custodial sentence. A
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is a feature of the sanction, place
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applications to revoke the suspende
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evocation of the sentence which is
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There remains a significant deficit
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APPENDIX A The questions below were
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11. We spoke about the CommunitySer
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REFERENCES AND BIBLIOGRAPHY BOOKS B
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Foucault, M. (1975) (Translation Al
Page 427 and 428:
McWilliams, W. and Pease, K. (1980)
Page 429 and 430:
Ryan, L. (1990) Irish Emigration to
Page 431 and 432:
Davies, M. (1974), Social Enquiry f
Page 433 and 434:
Roberts, J. (2003), Evaluating the
Page 435 and 436:
Expert Group on the Codification of
Page 437 and 438:
Report into the Case of Philip Shee
Page 439 and 440:
Young, W. (1978) Community Service
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People (DPP) -v - Aylmer [1995] 2 I
Page 443:
Criminal Law(Amendment) Act 1977 (E
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