Category: Press Releases

28 May 2011

James Hamilton, Director of Public Prosecutions

Opening Remarks at 12th Annual National Prosecutors’ Conference

28 May 2011

Attorney General, Members of the Judiciary, Fellow Prosecutors, ladies and gentlemen,

It gives me great pleasure to welcome you to our annual national prosecutors’ conference, the twelfth occasion on which this event has taken place.

This year’s conference will focus on two principal themes. The first is psychiatry and the criminal law with particular reference to the Criminal Law (Insanity) Act 2006, of which we now have five years experience. Our distinguished speakers are Prof. Harry Kennedy, Executive Director of the Central Mental Hospital and Mr. Domhnall Murray of this office. Our second theme is that of complex fraud, on which I have asked two leading criminal practitioners, Mr. Shane Murphy S.C. and Mr. Patrick McGrath, B.L., to present papers. I want to give a warm welcome to all four speakers and to thank them in advance for what I believe will be informative and stimulating contributions.

Given the current investigations taking place in relation to certain allegations of “white collar” crime I am constrained in what I might say about this topic, and obviously I have to refrain from any comment which could prejudice any case which might be brought. In particular, I will not comment on the substance of the allegations being investigated.

I do, however, think it timely for me to make some general remarks as I believe there are some current misunderstandings about what is happening.

Firstly, in our system investigators investigate and prosecutors decide whether to prosecute. The prosecutor does not direct the investigation, and, except in minor cases delegated to them, the investigators do not decide whether to prosecute. Only the prosecutor has this function.

Our system is an adversarial one, where the prosecutor presents the case, the accused defends, and the judge and jury decide on the issues of law and fact which are in dispute. The judge’s function is that of adjudication between the parties in contrast to inquisitorial systems where a judge supervises the work of the prosecutor.

I said I would not comment on the substance of the various investigations related to Anglo Irish Bank, and other than discussing process and making some remarks which would be relevant to any complex case I do not propose to say more than that this investigation has been unusual in one important respect. Normally a file is not sent to our office until an investigation is complete, at which point we start to consider the case and make a prosecution decision. Sometimes the decision cannot be made without further information or investigation.

Because of the complex and extensive nature of this investigation, it was agreed between me, the Garda authorities, and the Director of Corporate Enforcement, that files might be sent to my Office in advance of completion of the investigation so that our consideration of the case could begin even as the investigation continued with a view to speeding up the final decision. My office over the last few months has received a number of voluminous and carefully prepared files from both the Garda Bureau of Fraud Investigation and the Office of the Director of Corporate Enforcement. We have been working our way through them with the assistance of the counsel whom I have engaged. It is, however, important to note that, in all but one of the separate modules of this investigation, investigations are not complete and indeed the evidence of important witnesses has still to be taken. I should add that it is not possible nor was it ever envisaged that my office would take a final decision on whether to bring any prosecutions in this case until all the important evidence is gathered .

In an adversarial system the choice of what charges to prosecute is a function for the prosecutor alone. It is not a judicial function. In selecting offences care must be taken not to overwhelm a jury by a trial which is longer and more complicated than necessary. This judgment is for the prosecutor to make. This is a further reason not to take decisions to prosecute before all the important and relevant evidence is known.

I would like to take this opportunity to welcome the decision of the Minister for Justice and Equality to introduce a new Criminal Justice Bill in the Oireachtas. Until now it has been a surprising omission in Irish law that potential witnesses cannot be compelled to cooperate with an investigation, even where they themselves are not suspected of or accused of any wrongdoing. In this regard the power of an Irish criminal investigator is considerably weaker than that of a tribunal of enquiry. The new legislation will plug this gap.

I want to say a little about resources. When the scale of this investigation became apparent, before the last election, I sought additional resources for my Office from the Department of Finance. I was given a small but significant additional number of lawyers on short-term contract. I indicated that depending on how the case developed I might need further resources. I wish to say that when I have sought resources in the past I have always found the Department of Finance and the Government of the day willing to engage with my requests and while I have not always received everything I looked for I have always encountered an understanding that the provision of a functioning criminal justice system is not an optional extra. I am sure that will remain the position and I wish to make it clear that the fact a prosecution decision has not yet been taken is not due to any question of lack of resources, and that while the resources of the office are fairly stretched I have to date been able to allocate sufficient resources

to deal with this case. If the situation changes in the future and I need additional resources I will not be slow to ask for them.

I want to turn now to another subject of great interest to me, the project to change the policy of my Office from a refusal ever to give a reason for a prosecution decision to a willingness to give reasons where possible.

In October 2008 I announced a change in policy on the giving of reasons for prosecutorial decisions not to prosecute.

The policy was introduced on a pilot basis whereby reasons for a decision not to prosecute in a case involving a death are given to the family or household of a victim at their request. Prior to this change in policy, reasons for decisions not to prosecute were given to the Garda Síochána or State Solicitor but were not made public.

The policy applies to decisions not to prosecute, or to discontinue a prosecution made in respect of offences involving a death where the alleged offence occurred on or after 22 October 2008. The policy change was confined to alleged offences where a death has occurred including:

I originally anticipated that this pilot policy would operate until 1 January 2010 and that during this time a comprehensive evaluation of the policy would be undertaken with a view to ascertaining the viability of the project, particularly within the context of severely restricted resources, and the potential to extend the policy to other serious cases including sexual crimes.

However, because of the lapse of time between the occurrence of an incident and the eventual decision not to prosecute, the numbers of requests received within this initial evaluation period were too few to allow a meaningful analysis of the project. For this reason I decided to extend the pilot phase of the policy so as to allow the Office the opportunity to deal with a sufficient number of requests to carry out a more comprehensive evaluation process.

To date we have received requests for reasons for prosecution decisions in 19 fatal cases, of which 14 were fatal road traffic accidents. In 10 cases detailed reasons have been given. In addition, in line with Office policy, on receipt of a request for reasons for the decision not to prosecute, each case was thoroughly

reviewed by a different lawyer from the original decision maker. In many instances this review was undertaken by the Director, Deputy Director or Head of the Directing Division. In each of the 10 cases the original decision not to prosecute was upheld and the detailed reasons for same explained to the deceased’s next of kin.

In three of the four cases where the giving of detailed reasons was declined, cases arising from the death were before the courts. In effect these requests for reasons were not for a decision not to prosecute, but rather, a request to explain why particular charges were being pursued in preference to more serious charges. In each of these cases it was explained to the family or household member of the deceased that the Office could not comment while the matter was ongoing before the courts as to do so could prejudice the pending prosecution. In each such instance the Office offered to resume communication after the conclusion of the matter.

In the fourth case where reasons were refused the matter was still actively being investigated by An Garda Siochana and thus we considered, in view of the possibility of further evidence coming to light which might affect the initial decision not to prosecute, that it would be inappropriate to comment on the case at that time.

At this time five other cases are still pending.

In seeking to evaluate both the operation of this policy to date and the potential for expansion to include other serious offences, first and foremost I am mindful of the fact that these 19 cases represent to the families of each deceased a very personal tragedy.

Nineteen is not an insignificant number and I hope that the operation of this policy has given a degree of comfort to those bereaved families.

I am sure there is a degree of impatience that to date we have not moved beyond the pilot scheme to give reasons in other areas of crime.

The original evaluation project in my opinion has been a success in that we have not yet encountered any cases where we could not explain our reasons, other than where it was inappropriate to do so as cases were pending. While the number of requests has been less than expected each case is unique and important to the dead person’s family and friends. The policy of giving reasons in fatal cases will therefore continue.

What we have learned is that giving reasons is extremely time consuming. In effect each request for reasons becomes in practice a request for a review and a

second and more senior person has to read the file with care in order to clearly express the reason. Time-consuming is of course resource-consuming.

We are now in the process of examining how we might extend this project to decisions concerning other serious crimes, notably sexual crimes. This involves an evaluation by us of how much information it would be possible or appropriate to give in such cases as well as examining how to find the necessary resources. Following this evaluation I wish if possible to extend the project to sexual offences, almost certainly on a phased basis. I am not yet in a position to put a definite date on when we will be able to do this.

In conclusion, while the completion of this project is slower than I had ever expected, I believe that its further development is inevitable given time, once we accept that the principal obstacle to its attainment is a problem of resources and not a problem of principle.

Finally I want to thank all our staff, as well as our state solicitors and the counsel who work on our cases, for their cooperation and understanding despite our current difficulties. I also want to thank the various persons and agencies with whom we have professional dealings, including the Garda Síochána, other investigative bodies, the Courts Service, the Forensic Science Laboratory, the Medical Bureau of Road Safety, the Office of the Attorney General, the Law Reform Commission, support organizations for the victims of crime, the Department of Justice and other Government and State agencies, as well as the citizens who are affected by our services.

Thank you for coming today and I wish all of you a fruitful and an enjoyable conference.

 

 

 

19 March 2009

Top prosecutors stress importance of cross-border co-operation in fight against organised crime

The Director of Public Prosecutions, Ireland, James Hamilton and the Director of Public Prosecutions in Northern Ireland, Sir Alasdair Fraser jointly host an EU co-financed cross border conference in Dublin on 19/20 March 2009 on combating cross border fraud and corruption.

The conference – ‘Cross Border Fraud, Corruption and European Union Financial Interests’ – is co-financed by the Anti Fraud Office of the European Union (OLAF) and will run over two days. It has attracted some 130 officers and practitioners from investigative, prosecutorial and asset seizing agencies from over twenty six European countries. The conference will focus on the issues facing the investigator, prosecutor and Revenue/Customs agencies in dealing with trans-national fraud, facilitate exchanges of information and experience, identify and share best practices and enhance multi-agency cooperation and networking throughout the European Union.

Speaking at the start of the Conference, James Hamilton said:

“Organised crime and in particular cross-border fraud is a huge challenge facing all of us. Evidence shows us that organised criminals are increasingly sophisticated, operating across borders and continents.

They constantly seek to change their methods of operating in order to evade the attention of law enforcement agencies and it is vital that we too keep pace with emerging trends to ensure that our efforts are appropriately and effectively targeted.

We therefore need an international response to an international problem. That challenge can only be met through collective responsibility and effective co-operation locally, nationally and internationally. Through co-operation, sharing of intelligence and expertise we can add real value in combating organised crime.

Commenting on the nature and impact of cross border fraud, Sir Alasdair Fraser said:

“Organised criminals have a long tradition of exploiting tax differentials and currency fluctuations particularly in border areas on the island of Ireland. These activities have caused losses to both jurisdictions and to European Union financial interests, revenue which is vital to maintain and improve critical public services and bolster our economy.

Make no mistake, cigarette smuggling, fuel smuggling, oils, alcohol and cross-border VAT frauds are crimes. These affect every man, women and child in our society.

I am confident that this conference will enable us to establish an effective network between the key players throughout the European Union, strengthen the existing levels of co-operation and further develop best practice,” he added.

European Commission Vice-President Siim Kallas, responsible for administrative affairs, audit and anti-fraud, welcomed the conference’s objectives:

“Given that the fraudsters do not recognise borders, co-operation, information exchange and mutual assistance across borders are essential to the Commission and to OLAF to ensure that EU funds receive the same level of protection as national funds”.

ENDS

12 April 2008

Introduction

My purpose in this brief paper is to examine the role of prosecutors at sentencing hearings and in relation to “undue leniency” reviews. In particular, I propose to deal with the following themes: the roles of the judge and the prosecutor in relation to sentencing, the Guidelines for Prosecutors and the Bar’s Code of Conduct, the issue of advocacy in relation to sentencing and the extent to which the prosecutor may properly express an opinion to the court concerning the appropriate sentence, and recent developments in the practice in the Central Criminal Court in relation to sentence hearings.

The Traditional Role of the Prosecutor

The traditional role of the prosecutor at the sentencing hearing was limited to drawing the attention of the trial judge to legal precedents and the prosecutor did not seek to indicate to the trial judge an appropriate sentence in individual cases. This position was justified by reference to the fact that sentencing is an exclusively judicial function. However, in People (DPP) v. Dennigan[1] it was held that both the prosecution and defence are under a professional duty to draw the court’s attention to any common law authorities or statutory provisions relevant to sentencing in the particular case. More recently the Court of Criminal Appeal in People (DPP) v. Botha[2] reiterated this duty of the prosecution to assist the sentencing judge with the provision of information on relevant precedents.

To go further than assisting the court in this manner would, it was felt, offend the long established principle that there must be a clear boundary between the executive and judicial roles in the sentencing process. A key principle was stated by the Supreme Court in Deaton v. Attorney General and the Revenue Commissioners[3] where it was held that where there is a choice of punishment to be made, the choice is solely for the judiciary and not the executive. Ó Dálaigh C.J. stated:

“The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers—and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one—could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power.”[4]

Of late the courts have been increasingly open to expanding the traditional role of the prosecutor at the sentencing stage. There have been many judgments criticising the traditional limited role of the prosecutor at this stage of trial. The Office of the DPP has endeavoured to take on board these criticisms and has published Guidelines for Prosecutors which inter alia provide guidance to prosecutors at the sentencing phase of a trial.

Guidelines for Prosecutors

The Guidelines for Prosecutors were first published by the Office of the DPP in 2001 and are continuously revised reflecting legislative and procedural changes in the criminal justice system. Many of the guidelines regarding the prosecutor’s role at the sentencing hearing have been formulated bearing in mind the recent criticisms. The Guidelines for Prosecutors outline the duties of the prosecutor in the sentencing process:

“When appearing at a hearing in relation to sentence the prosecutor has the following duties:

(a) to ensure that the court has before it all available evidence relevant to sentencing, whether or not that evidence is favourable to an accused person;

(b) in particular, to ensure that the court has before it all available relevant evidence and appropriate submissions concerning the impact of the offence on its victim, in accordance with the provisions of section 5 of the Criminal Justice Act, 1993, in respect of offences to which that provision applies;

(c) in addition, to ensure that the court has before it all relevant evidence available to the prosecution concerning the accused’s circumstances, background, history, and previous convictions, if any, as well as any available evidence relevant to the circumstances in which the offence was committed which is likely to assist the court in determining the appropriate sentence;

(d) to ensure that the court is aware of the range of sentencing options available to it;

(e) to refer the court to any relevant authority or legislation that may assist in determining the appropriate sentence;

(f) to assist the court to avoid making any appealable error, and to draw the court’s attention to any error of fact or law which the court may make when passing sentence.” [5]

In addition, the prosecutor has a duty to deal with any questions of forfeiture, compensation or restitution which may arise.[6] Where there is a significant difference between the factual basis on which an accused pleads guilty and the case contended for by the prosecution, the prosecutor is required to adopt an adversarial role to seek to establish the facts upon which the court should base its sentence. [7]

The prosecutor is also required to challenge any matters advanced by the defence in mitigation which “the prosecution can prove to be wrong, and which if accepted are likely to lead the court to proceed on a wrong basis.”[8] The correct procedure in those circumstances is firstly to inform the defence that the matter advanced in mitigation is not accepted. If the defence persists it is the prosecutor’s duty to invite the court to require the defence to prove the disputed matter and if necessary to hear prosecution evidence in rebuttal. Co-operation by convicted persons with law enforcement agencies is to be appropriately acknowledged or, as the case may be, disputed at the time of sentencing.

With regard to “matters in mitigation of which the prosecution has not been given prior notice or the truth of which the prosecution is not in a position to judge” the prosecutor is to “invite the court to insist on the matters in question being properly proved if the court is to take them into account in mitigation.”[9]

The two preceding Guidelines were drafted bearing in mind the following judgments: in People (DPP) v. George Redmond[10], a review of sentence on the grounds of undue leniency, the Court of Criminal Appeal would not allow the prosecution to raise an issue concerning the assertion by the defence at the sentencing hearing that the accused was now destitute when the prosecution had failed to challenge this assertion at the sentence hearing. In People (DPP) v Kevin Keegan[11] Hardiman J. in the Court of Criminal Appeal criticised the prosecution for failing to test “the very informal manner” in which evidence was given by the defence as to the defendant’s drug problem at the sentencing stage. He stated:

“…. Does the defendant have a drug problem or does he not? The evidence for this was extremely sparse but it was taken without objection. If appeals are to be conducted or applications for a review of this sort are to be conducted on a proper basis, it appears to us that some greater formality, both from the prosecution and the defence in the presentation of evidence in relation to sentence is necessary. There is no doubt at the moment that Gardaí give evidence of opinion on general matters which if the strict rules of evidence were to be applied would not pass muster and there is certainly no doubt that the defence, by handing in letters of various sorts and getting people to say things which they understand to be so but can’t really prove themselves, depart very significantly from these rules. And, as I say, that must enure against the party bearing the onus of proof on the hearing of an appeal. For instance if proof is required that the defendant is suffering from a drug problem, that proof is defective here, but it was given without objection and it was accepted to the extent that it was in the piece of the transcript I have just quoted, by the learned trial judge. It is very difficult now to turn around and say (when no objection was taken at the time) that the judge erred in principle in taking that into account. It seems to us that these appeals, these applications for review raise serious questions of a procedural nature which have yet to be fully thought through.[12]

The Guidelines also deal with the situation where the court seeks the views of the Director as to whether a custodial sentence is required in a particular case. In such circumstances the prosecutor should not express his or her own views in relation to the matter but must seek instructions from the Director.[13] The prosecutor must make it clear to the court that in order to give instructions in such a case the Director would require sight of all the relevant material before the court, including all reports and transcripts of relevant evidence, and adequate time to give a proper views. This provision aims to give effect to the decision of the Court of Criminal Appeal in People v. Patrick Furlong[14] where Keane C.J., speaking on behalf of the Court, held that it was reasonable to expect the Director, on request, to give such views.

The Code of Conduct for the Bar and the Issue of Advocacy

From the above outlined Guidelines one might infer that the prosecutor is to a degree extending the adversarial system to the sentencing stage where, for example, the prosecutor may refer authorities to the trial judge, this practice not being conditional on a request from the court to do so. Arguably the provision of a selection of ‘relevant’ authorities to the court could amount to a form of advocacy when there is no agreement as to what the relevant authorities are. The Office of the DPP, however, emphasises in its Guidelines that the prosecutor must not seek to persuade the court to impose a particular sentence:

“The prosecutor must not seek to persuade the court to impose an improper sentence nor should a sentence of a particular magnitude be advocated. However, the prosecutor may, at the request of the court, draw the court’s attention to any relevant precedent.”[15]

The Code of Conduct for the Bar also deals with the duty of prosecuting counsel at the sentencing phase of a trial. It provides as follows:

“Prosecuting barristers should not attempt by advocacy to influence the court in regard to sentence. If, however, an accused person is unrepresented it is proper for a prosecuting barrister to inform the court of any mitigating circumstances as to which they are instructed.”[16]

The Guidelines for Prosecutors are intended to supplement rather than replace the professional codes governing the conduct of counsel acting on behalf of the DPP.[17] The question of whether there is a conflict between the Bar Code of Conduct and the DPP’s Guidelines would seem to depend on what is meant by an “attempt by advocacy to influence the court in regard to sentence”[18]. If there was ever any serious argument that putting relevant evidence before the court, objecting to the admission of inadmissible evidence or citing relevant precedent to the court fell within these prohibited categories that argument is surely unsustainable in the light of the decisions in Keegan and Botha.[19] The Code of Conduct of the Bar must be interpreted in the light of these judgments. In addressing this possible anomaly, I understand that the Bar Council is currently reviewing this section of its Code of Conduct. Meanwhile, at least in the Central Criminal Court, the practice has moved on. Counsel for the prosecution in that court now regularly refer to relevant authorities and on occasion identify aggravating and mitigating factors, a development I shall refer to later in this paper.

Prosecution Reviews of Sentence

An area of sentencing which does not preclude advocacy on the part of the prosecutor is the prosecutorial review of sentence on the grounds of undue leniency. Under the Criminal Justice Act, 1993, the DPP may seek a review of sentence imposed on conviction on indictment. The Court of Criminal Appeal, having considered the application by the DPP, may either quash the sentence and impose such sentence as it considers appropriate, as long as the substituted sentence is one that could have been imposed by the trial court, or may refuse the application. This mechanism for a prosecutorial review of sentence on grounds of undue leniency reflects the approach of other common law jurisdictions. The Criminal Justice Act 1988 (ss. 35 & 36) introduced the procedure in England and Wales.[20] In Scotland provision is made in the Prisoners and Criminal Proceedings (Scotland) Act 1993 and in the Criminal Procedure (Scotland) Act 1995 for a prosecution appeal against sentence on a point of law.

As regards principles governing a sentence review in this jurisdiction, the Court of Criminal Appeal has held that the onus lies on the Director to show that the sentence is not merely lenient but unduly so. In such a review, great weight is attached to the trial judge’s reasons for imposing the sentence. Since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the court in order to increase the sentence: People (DPP) v. Byrne.[21] There must have been an error of principle by the sentencing court to justify altering the sentence: People (DPP) v. Redmond[22]. The Court of Criminal Appeal will not, therefore, increase a sentence because of a mere disagreement with its level or because, had the court been in the position of the trial judge, it would have imposed a different sentence. It is necessary that there be a substantial departure from the accepted range of appropriate sentences for the offence committed in the circumstances of the case, including the specific elements relating to the offender, or an error of principle in the way in which the trial judge approached sentencing. In order to ensure the effective and consistent application of the power to seek a sentence review the DPP’s Office must be made fully aware of the reasons for the imposition of the sentence at issue by the trial judge as well as the evidence that was before the court at the sentencing hearing.[23] In practice, for this purpose I have to rely on reports from my own solicitor and counsel. It is rarely possible to obtain a transcript within the time allowed to seek a review even though there are cases where knowledge of the precise reasoning of the sentencing judge might have been of assistance. This can in particular arise where a judge has formed an opinion on the likelihood of an offender re-offending based on probation reports or other expert assessments.

Guidance from the Courts

There has been some criticism that prosecution reviews of lenient sentences have been used more frequently than initially envisaged. Having regard to the relatively high proportion of reviews resulting in an increase in sentence – 30 out of 39 in 2007. I do not accept that that criticism is well-founded. The traditional antipathy of the higher courts to anything in the nature of a “tariff”,, which could in turn inform the manner in which trial judges exercise the wide discretion granted to them, has in my opinion contributed to a lack of consistency, predictability and clarity in some cases. I do not, however, wish to overstate this; the number of undue leniency reviews in the average year is about 2% of all indictable cases, which indicates that the DPP’s Office does not consider the other 98% to fall into the unduly lenient category.

In People (DPP) v Tiernan[24] the Supreme Court rejected the notion of a standardisation or tariff of penalty for cases in the following terms:

“Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.”[25]

From this it appears that two reasons were cited for the Court’s refusal to lay down any standardisation or tariff – first, the lack of data before the court on patterns of sentencing and secondly a reluctance to interfere with the discretion of trial judges.

It is no longer true that there is no information available concerning the general pattern of sentences imposed for the crime of rape. The cases of The People (DPP) v Kelly[26] and The People (DPP) v Drought[27] have analysed a substantial number of sentences for, respectively, manslaughter and rape. In the last few years the Court of Criminal Appeal has been more active in setting out general principles in sentencing which is a welcome development. In a series of cases culminating in the People (DPP) v. Kelly[28] the method of arriving at a proportionate sentence was examined. A judge should begin by assessing the gravity of the offence itself and locating it on the scale of the available penalty. The usual formula is to consider whether the starting point should be at the low, middle or high end of the scale. The court must then proceed to decide if further credit is to be given for any mitigating factors and if any such factors are present, a further downward departure will be necessary. Application of this two-stage process requires the identification of a starting point for a sentence by reference to a “scale” before then taking into account the mitigating and aggravating factors in the individual case, notwithstanding the dicta in Tiernan disapproving the idea of tariffs.

The case of People (DPP) v. Loving[29] dealt with sentencing for possession of child pornography. On this issue the Court of Criminal Appeal stated:

“An examination of the cases shows that the courts have frequently imposed suspended sentences or fines in cases where much more child pornography was involved and where credit cards had been used. Where the offence is at the lower levels of seriousness, there is no suggestion of sharing or distributing images, the accused is cooperative and it is a first offence, the option of a suspended sentence should at least be considered. Finally, it should be recalled that the applicant will be placed on the register of sex offenders.”

In People (DPP) v. Drought[30], before imposing a sentence in a rape case in the Central Criminal Court, Charleton J. conducted an extensive examination of all previous reported and unreported decisions of the Superior Courts. He stated that:

“The result is an attempt to divine both the relevant sentencing principles and the parameters within which such a sentence can be imposed for the sake of consistency and predictability.” [31]

Of course, the approach in Kelly and in Drought, although very useful, has some limitations. Kelly in particular is principally a descriptive exercise in analysing what courts have actually done in manslaughter cases rather than prescribing what appropriate sentences ought to be.

These and other helpful judgments, by elucidating sentencing principles, represent in my opinion a major advance towards achieving consistency and fairness in sentencing. When the ongoing Irish Sentencing Information System (ISIS) project under the chairmanship of Ms. Justice Susan Denham is completed it will represent a further advance. This project will undertake extensive research into sentencing patterns and statistics so that a comprehensive sentencing database system can be established. If feasible the judiciary may then have access to this when deciding on an appropriate sentence in each individual case.

Developments in Practice at Sentence Hearings

One of the effects of the undue leniency jurisdiction has been to put pressure on the prosecution to be more forthcoming in indicating its view on sentencing. In particular, Mr. Justice Carney on a number of occasions both on and off the Bench was critical of the prosecutors’ tendency to say little or nothing at the sentence stage itself about what the appropriate sentence should be, and then to seek a review of the sentence and to be critical of the judge’s approach to sentencing at the appeal stage. I have long felt that there was considerable force in such criticisms. The difficulty from my point of view, however, was that what I regarded as an over-restrictive interpretation by some members of the Bar of its Code of Conduct meant that some barristers were reluctant to say anything about sentencing at all.

The increase in the number of judgments in which the Court of Criminal Appeal has given real guidance on the principles to be applied in sentencing has, however, led in recent times to the development of a practice in the Central Criminal Court whereby it has become common for counsel for the prosecution to be asked where in the Director’s opinion the offence should be located in the overall scale of gravity, in accordance with the methodology suggested in Kelly. In anticipation of such requests I have instituted a practice in Central Criminal Court of seeking the advice of counsel in advance of sentence hearings and giving them instructions on how to respond to such requests. This development has in effect led to a practice in the Central Criminal Court similar to that recommended in the Final Report of the Balance in the Criminal Law Review Group. It is now common for the prosecution to indicate through counsel whether the offence is seen as falling into the upper, the middle or the lower end of the scale, but without putting forward an actual figure. Kelly or Drought have in many cases proved to be of particular assistance in providing authority for that assessment of gravity. Almost always also the judge will indicate prior to sentencing what he or she sees as aggravating or mitigating factors, giving counsel for both sides an opportunity to make submissions on the point should it prove necessary to do so.

On the whole, I think this development is a healthy one which should lead to a greater consistency of approach and perhaps a reduction in the number of appeals, although giving instructions concerning submissions on sentence does place a greater burden on the Office’s resources. In adopting this approach it is, however, important not to lose sight of the principle that the selection of punishment is solely for the judge, not the prosecutor, but that it is proper for the prosecutor to draw attention to relevant precedents, including precedents relating to the question of what is an appropriate sentence.

James Hamilton
12 April 2008

 

  1. (1989) 3 Frewen 253
  2. [2004] 2 IR 375
  3. [1963] I.R. 170
  4. [1963] I.R. 170 at 183
  5. Guidelines for Prosecutors (revised October 2007) para 8.14
  6. Ibid para 8.15
  7. Ibid para 8.16
  8. Ibid para 8.17
  9. Ibid para 8.18
  10. [2001] 3 IR 390
  11. Unreported, Court of Criminal Appeal, 28th April 2003
  12. At pp. 6-7
  13. Guidelines for Prosecutors para 8.21
  14. Unreported, Court of Criminal Appeal, 3rd July 2000
  15. Guidelines for Prosecutors para 8.20
  16. Rule 10.23, Code of Conduct for the Bar of Ireland
  17. Guidelines for Prosecutors para 3.1
  18. For analysis of possible conflict between the two documents see the Final Report of the Balance in the Criminal Law Review Group
  19. Unreported, Court of Criminal Appeal, 28th April 2003 & [2004] 2 IR 375
  20. In England and Wales prosecution appeals are taken by the Attorney General.
  21. [1995] 1 I.L.R.M. 279
  22. [2001] 3 I.R. 390
  23. The Guidelines for Prosecutors set out guidelines for sentence reviews at paras 11.5 – 11.9
  24. [1988] 1 I.R. 250
  25. [1988] 1 I.R. 250 at 254
  26. [2005] 1 ILRM 19
  27. Unreported, Central Criminal Court, 4th May 2007
  28. [2005] 1 ILRM 19
  29. Unreported, Court of Criminal Appeal, 10th March 2006
  30. Unreported, Central Criminal Court, 4th May 2007
  31. At p. 4 of the judgment