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service, the offender might not only be regarded as giving his formal consent but might
also be viewed as participating in a communication in the passing of sentence (Duff 2000).
In this perspective the offender is transformed from the role of passive recipient of a
penalty such as a fine or imprisonment to the role of active participation in the courts
sentence of him.
The Bill followed closely the recommendation that the consent of the offender would be
required before an order of communityservice could be imposed. Defendants in criminal
trials do not have the option to abstain from the process and accordingly may not be
viewedas willing participants. Generally, convicted defendants, except for those rare cases
where the convicted person feels the need for atonement for the wrongful acts done by
him, are not willing participants in their penalty. At best the convicted offender merely
accepts passively the penalty whether by way of custodial sentence, probation or the
payment of a fine. The requirement of consent of the convicted offender to perform
community service can be criticised as lacking authenticity because it is coerced. Young
has described this as “confused thinking” (1979:28). He states “coercion does not arise
merely because the alternative is less attractive” (Ibid.:28). He identifies three reasons for
the requirement of consent bythe offender as a condition precedent to the performance of
community service. The European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) and the International Labour Office Convention for the
Suppression of Forced or Compulsory Labour (1926) both prohibit the imposition of
compulsory unpaid work outside an institution. A community service order without
consent would contravene the British State’s obligations under these Conventions to which
it was a signatory. A second practical consideration reflects the unwillingness of some
offenders to engage in community service. Sometimes offenders frankly declare to the
probation officer when preparing the Social Enquiry Report that they do not wish to do
the community service for reasons which may be related to a desire to prosecute an
immediate appeal against conviction or in anticipation of a custodial sentence in relation to
another unrelated case. These offenders are usually considered unlikely to prove
compliant with a community service order and would perform community service, if done
at all, to a verypoor standard(Young1979:28).
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