Report on Mandatory Sentences - Law Reform Commission

conviction that restricted employment opportunities and might expose an impecunious offender to the risk
of imprisonment. Thus, there was little consistency in outcomes.
(b)
Discussion
1.110 As noted at paragraph 1.36, there are certain important advantages to the current system of
sentencing, in particular, judicial independence and discretion. Without these vital aspects there would
be little justice in sentencing and the Commission thus observes that they should be preserved. The
studies discussed, however, suggest that the unstructured nature of the current sentencing system may
(in spite of guidance provided by the Oireachtas, the Supreme Court and the Court of Criminal Appeal)
give rise to a degree of inconsistency in the application of sentencing aims and principles. This may
suggest that the guidance provided is not taking hold and/or is not transmitting down to the lower courts,
such as the Dublin and Cork District Courts surveyed in those studies. In addition, it suggests that the
reasons for the apparent inconsistencies may not be dealt with either on a once-off basis, such as where
the Oireachtas prescribes a mandatory, presumptive or maximum sentence, or on an ad-hoc basis, such
as where the Supreme Court or the Court of Criminal Appeal formulates guidance in specific cases. For
these reasons, the Commission next considers the option of building on the existing level of structure to
improve consistency in sentencing.
(2) Improved Structure and Greater Consistency in Sentencing
1.111 The Commission acknowledges the progress that has been made by the courts and the Irish
Sentencing Information System (ISIS) with regard to improving the structure of sentencing. Given the
level of inconsistency which remains in the system, however, the Commission observes that the work
undertaken by the courts and ISIS might be usefully supplemented and/or supported by a dedicated
body, such as a Judicial Council, empowered to formulate sentencing guidance on an ongoing basis.
(a)
Judicial Guidance
1.112 Regarding the courts, the Commission observes that the courts have developed their thinking
since the decision of The People (DPP) v Tiernan, 212 in which the Supreme Court showed an initial
reluctance towards sentencing guidance, at least in respect of the rigidity that sentencing standards or
tariffs might entail. As illustrated in Part D above, the Supreme Court and the Court of Criminal Appeal
are responsible for much of the judicial guidance on sentencing today. In particular, the Court of Criminal
Appeal, through its appellate review power, is uniquely situated to offer effective guidance on many key
aspects of sentencing. 213
1.113 Despite its advantageous position, however, the reach of the Court of Criminal Appeal is limited
in a number of respects. First, the capacity of the Court to formulate sentencing principles is restricted by
the range of offences within its jurisdiction. 214 Typically, it is confined to dealing with appeals against
sentence for serious offences and will have little opportunity to consider sentencing practice in the courts
of summary jurisdiction. 215 Second, the Court lacks a sufficient volume of sentencing appeals from which
to develop considered and principled sentencing guidance. 216 Third, even when the opportunity does
arise to develop sentencing guidance, it is limited to a case-by-case consideration. 217 Where guidance is
delivered on this basis, sometimes over many years by differently constituted courts, there is a risk that
212
213
214
215
216
217
The People (DPP) v Tiernan [1988] IR 250.
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 116ff; and Law Reform Commission
Consultation Paper on Sentencing (LRC CP 2-1993) at paragraph 3.22.
O’Malley “Living Without Guidelines” in Ashworth and Roberts, eds, Sentencing Guidelines: Exploring the
English Model” (Oxford University Press, 2013) [forthcoming]
Ibid.
O’Malley Sentencing -Towards a Coherent System (Round Hall, 2011) at 116ff; and Law Reform Commission
Consultation Paper on Sentencing (LRC CP 2-1993) at paragraph 3.22.
O’Malley Sentencing -Towards a Coherent System (Round Hall, 2011) at 118ff.
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