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Quite a significant number of Judges surveyed on the statutory necessity of a custodial
precondition to the use of the community service in Ireland favoured the abandonment of
such a high threshold. Instead, they advocated its substitution with a community service
order which would be free standing and unconditional upon any other penal requirement.
One judge indicated he would use the sanction more frequently in such circumstances.
However s/he did reflect upon the difficulties which would be encountered to ensure
compliance:
“…I would have to saygiven myexperience I think there has to be some link with it (custody) there
because I just feel the wayhuman nature is and the waythe systemis that if it weren’t there, I would
be unsure as to whether there wouldbe the genuine (intent) to followthrough… I tell you one of
the things that I have learnedabout this particular job is that if yougive an inch, a mile is taken and
effectivelyI feel verystronglythat if the coercive element were taken awaycompletelyin relation to
the matter, that a mile wouldbe taken.” A6J1DC.
The categorisation of offences for which communityservice might be imposed in England
and Wales as imprisonable offences helps to some degree in defining the type of offence in
the scale of seriousness but it lacks the clarity provided for in the penalty of suspended
sentences (S11(3) Criminal Justice 1972) where it is provided a court should not impose a
suspended sentence unless the court had first determined that no other method of
sentence is appropriate other than imprisonment, before suspending such term of
imprisonment. It should be noted that the use of the suspended sentence, which in lawis
not a non-custodial sentence, has none the less operated as a sanction in its own right in
spite of the clear immediate custodial criteria upon which Courts may suspend a sentence.
The Criminal Justice Act 1972 and the Court of Appeal (R –v- O’Keefe [1969] 2QB
29;[1969] 1 All ER.246) were unambiguous and precise in specifying that the suspended
sentence should only be imposed when the court decides that the case is one for
imprisonment. Research has variably shown that between 40% and 55% of those given a
suspended sentence would probably have been given immediate imprisonment if the
suspended sentence had not been available (Sparks 1971); nonetheless it seems clear that in
a large number of suspended sentences the courts, in particular Magistrates Courts, did not
follow the policy mentioned in O’Keefe. Instead of being used as an alternative to
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