31st August 2020
The Law Reform Commission (LRC or ‘the Commission’) has today published a Report on Suspended Sentences. The report follows on from the Commission’s 2017 Issues Paper on Suspended Sentences and is based upon wide research and consultation.
The Commission’s report examines the legislation and the principles that underpin the operation of suspended sentences in Ireland and makes a number of proposals as to how the suspended sentence might be used more effectively. While there is much to be considered in the lengthy report, the report concludes that suspended sentences work well in general as a sanction that could be imposed by the courts and that the sanction is potentially compatible with the three main sentencing objectives of Irish sentencing law: retribution, deterrence and rehabilitation.
While the report generally recommends maintaining judicial discretion on when to apply suspended sentences, the Commission called for more research and data on suspended sentences to be made available to provide a more detailed insight into their effectiveness.
As part of its research for the report, the Commission conducted an analysis of the use of suspended sentences across major offending categories in the Circuit Court and found the imposition of fully-suspended sentences fell dramatically between 2006 and 2017. In 2006, 40% of all sanctions imposed in the court were suspended, compared to just 17% in 2017. However, the Commission finds that the precise reasons for this decline are unclear due to a lack of data. IPRT welcomes the LRC’s calls for further research to understand what was behind this decline by the Judicial Council's Sentencing Guidelines and Information Committee (recently established under the Judicial Council Act 2019). The LRC report also proposes that the Sentencing Guidelines and Information Committee should formulate guidance for judges specifically on the use of suspended sentences.
IPRT made a submission to the consultation process in 2018, centring on the principle of imprisonment as a sanction of last resort, benefits of the suspended sentence, the ineffectiveness of presumptive and/or mandatory minimums, availability and monitoring of sentencing data, and the need for distinct approaches to specific cohorts, among other issues. IPRT’s previous work in areas such as imprisonment as a last resort, parole, and community service in Ireland are referenced by the LRC in today’s report.
Generally, IPRT believes that suspended sentences offer a way to recognise the seriousness of an offence through the formal imposition of a prison sentence, while avoiding the damage which accompanies a custodial sentence. We believe that, among other benefits, if a suspended sentence is used correctly it can be a way of providing structured support and assistance to an offender and can have a strong rehabilitative effect.
Among the series of recommendations made by the Commission in the report, IPRT particularly welcomes that the general penal aim of avoidance of prison should be taken into account when considering whether to impose a suspended sentence. The report finds that in order for all sentences to be proportionate to the gravity of the offence and the personal circumstances of the offender, the most serious form of punishment available under Irish criminal law – the deprivation of personal liberty – should only be reserved for the most serious offending behaviour.
Further, we welcome that the Commission has recommended that when sentencing an adult offender for an offence that he or she has committed as a child, the sentencing court should take account of the offender’s age and level of maturity at the time of committing the offence. This is particularly welcome as prosecutorial delay often results in young people ‘ageing out’ into the adult justice system. This issue was discussed at an IPRT seminar on ‘Developing Youth Justice’ in November 2019. The report also recommends that the use of suspended sentences should be confined to adults and should not be expanded to children who offend. The report finds that detention of children is predominantly a welfare issue, while imprisonment of adults is primarily handed down as a punishment.
While not a recommendation in itself, there is significant discussion in the report on the topic of mandatory minimums. The abolition of mandatory minimums was recommended by the Commission in its 2013 report on Mandatory Sentences. The Commission reiterates this recommendation in this report and welcomes the fact that a review of minimum sentences (both mandatory and presumptive) will take place within the next two years, pursuant to section 29 of the Judicial Council Act 2019. As an opponent of mandatory and presumptive minimums, the introduction of a legislative basis for this review was previously welcomed by IPRT.
The publication of this report offers a welcome in-depth review of a much-reported but under-evaluated sentencing option available to the courts in Ireland. We look forward to reading the lengthy report in closer detail over the coming days and to sharing a more comprehensive analysis of its findings, from a penal reform perspective.
Respect for rights in the penal system with prison as a last resort.