Offences created by statutory instrument – should ignorance of the law be an excuse or, at least, afford mitigation?

In one of his great constitutional judgments, King v Attorney General [1981] I.R. 233, Mr Justice Henchy referred (p. 257) to “the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct.” In that case, part of an early nineteenth century vagrancy statute was found to be inconsistent with the Constitution on a number of grounds including, in the view of Henchy J., its inherent vagueness. The passage just quoted gives eloquent expression to one aspect of the principle of legality, which is trebly protected by the common law, the Constitution and art. 7 of the European Convention on Human Rights, namely, that criminal offences should be clearly and specifically defined so that each of us knows or is able to ascertain what exactly the law prohibits. It would scarcely be acceptable in a liberal democracy claiming fidelity to the rule of law if an accused person had to await the verdict by a criminal court in order to discover if the alleged conduct amounted to a criminal offence in the first place.

It is surely equally important that before anyone – man, woman or child – walks abroad, they should have reasonable notice of what the criminal law prohibits. Professor Andrew Ashworth, in leading article to which I will refer later, quotes the late John Gardner (onetime Professor of Jurisprudence at Oxford) who wrote:

“The law must avoid taking people by surprise, ambushing them, putting them into conflict with its requirements in such a way as to defeat their expectations and frustrate their plans.”

One can scarcely dispute that proposition, and certainly not when it relates to the criminal law. What the criminal law prohibits should be effectively publicised. More than 35 years ago, Meir Dan-Cohen drew attention to the distinction between conduct rules and decision rules in the criminal law. Conduct rules (typically in the form of “thou shalt not”) are addressed to the public at large whereas decision-rules including, for example, the availability of defences are usually more selectively transmitted to officials responsible for administering the law (“Decision rules and conduct rules: On acoustic separation in criminal law” (1984) 97 Harvard Law Review 625). Whatever the legitimacy of selectively transmitting decision rules (and Dan-Cohen seriously questions it), there can be no doubt about the moral necessity of communicating conduct rules to the public. Simply put, we are entitled to be made aware of which acts and omissions constitute criminal offences. We tend to assume, realistically or otherwise, that the public enactment and promulgation of new statutes is sufficient for this purpose. That may well be so, but should we make a similar assumption when new offences, including nowadays indictable offences, are created by statutory instrument and thus remain generally unknown until somebody is prosecuted? I suggest not.

Most, if not all, of the statutory instruments in question are giving effect to European Union law. The European Communities Act 1972, enacted as Ireland was about to join the EEC, permitted the making of regulations to give full effect to Community law, but with the qualification that such regulations could not create indictable offences. However, this was amended by the European Communities Act 2007 (itself later amended by the European Union Act 2009) which permits the creation of indictable offences by way of regulation where this is considered necessary to give full effect to European Union law. The maximum fine permitted for such an offence is 500,000 Euro and the maximum term of imprisonment is three years. This amendment was deemed necessary following the Supreme Court judgments in Browne v Ireland [2003] 3 I.R. 205 and Kennedy v Attorney General [2007] 2 I.R. 45. See Dail debates (8 February 2007) on second stage of the European Communities Bill 2006. In constitutional terms, it amounted to a significant transfer of power from the legislature to the executive.

Even within the past few months, several regulations have been made creating indictable offences most of which are punishable with the permitted maximum of three years’ imprisonment. Granted, these regulations tend to deal with relatively obscure matters such as breaching restrictive measures (which usually take the form of freezing funds) adopted by the EU against countries or regimes guilty of serious human rights violations and abuses. This holds true of SI 224/2021 (relating specifically to Myanmar/Burma) and SI 235/2021. Another, SI 249/2021, amends an earlier regulation (SI 14/2011) dealing with the safety of toys but that earlier one created an indictable offence punishable with up to 500,000 Euro or two years’ imprisonment.

But with the ever-growing reach of EU law, many areas of law traditionally regarded as quintessentially matters of domestic policy are now governed, in part at least, by EU legislation. This holds true even of sex offences, so that in 2015 two new sex offences (or three depending on how you count them) were created by way of statutory instrument. This was done to give effect to EU Directive 2011/93/EU which deals with combating child sexual abuse and exploitation and child pornography. This Directive, which is far more detailed and specific than the 2004 Framework Decision it replaced, was to be transposed into the laws of member states by December 2013. We did not quite make that deadline, and we were probably not fully compliant with the Directive until the Criminal Law (Sexual Offences) Act 2017 entered into force on 27 March 2017. In the interim, and presumably as a stop gap measure, the Minister for Justice and Equality made a Regulation (SI 309/2015) that created two new offences: (1) attending a pornographic performance involving a child, and (2) engagement in sexual act by a person in authority with a child aged between 17 and 18 years. Each offence carried a maximum sentence of three years’ imprisonment. The provisions creating these offences were repealed by another instrument (SI 114 of 2107), with effect from the date on which the 2017 Act entered into force. Equivalent offences were created by that Act (ss. 13 and 18) which makes each of them punishable with a maximum of 10 years’ imprisonment.

May a person still be charged with either of the sex offences created by the 2015 Instrument if the offence is alleged to have been committed while the Instrument was in force? The answer, I suggest, is yes, because under s. 27 of the Interpretation Act 2005 an offence created by a repealed enactment may still be prosecuted and “enactment” is defined as meaning an Act or a statutory instrument. The three-year maximum penalty would apply in the event of a conviction in those circumstances.

However, Statutory Instrument 309/2015 has another important provision which, as far as I can see, remains in force. Part III provides that when sentencing a person for a sexual offence, a court shall consider whether to make an order prohibiting the offender from working with children. This provision is quite detailed and it allows, for example, for an application to be made for discharge from the prohibition. Of most interest for present purposes is that non-compliance with such an order is an offence that may be dealt with either summarily or on indictment and, in the latter event, it carries a maximum sentence of three years’ imprisonment.

This brings me to the main point of the post which is to ask if it is right or compatible with our collective notions of fundamental fairness or, for that matter, with the rule of law (however defined) to create serious offences by means of statutory instruments (of which there are hundreds in any given year) without taking any meaningful steps to bring those offences to public attention. The same question might, of course, be asked about statutes but, generally speaking, because of the elaborate parliamentary process to which draft legislation is subject before being enacted, statutes are more likely to become known, if not to the general public, at least to the legal community. The same cannot, however, be said about statutory instruments.

The maxim or principle that ignorance of the criminal law provides no defence to a criminal charge is well established, even if it is not, strictly speaking, a rule of law. As David Ormerod and Karl Laird say in Smith, Hogan and Ormerod’s Criminal Law 15th ed. (Oxford University Press, 2018), the leading English criminal law treatise, mistake or ignorance of the law applies “even where the crime is not one commonly known to be criminal. Thus, ignorance of any of the thousands of regulatory offences is no defence” (p. 338). They then mention an exception relating to statutory instruments, and this happens to apply in Ireland as well. Our Statutory Instruments Act 1947, s. 3(3) (which is closely modelled on the equivalent provision in the English Statutory Instruments Act 1946) provides that where a person is charged with an offence contravening a provision in a statutory instrument and the prosecution does not prove that, on the date of the contravention, notice of the making of the instrument had been published in Iris Oifigiuil, the charge shall be dismissed, “unless the prosecutor satisfies the court that at the said date reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public or of persons likely to be affected by it or of the defendant.”

Yet, one must ask if publication in Iris Oifigiuil is sufficient. The Iris doesn’t exactly have a wide circulation, and down through the years millions of citizens have lived happily without ever having heard of it. At present, in fact, it is published in electronic form only. Fans of P.G. Wodehouse will recall that Jeeves (Bertie Wooster’s ever-correct, polymath valet) used to say that he liked to read a few pages of an improving book every night before bedtime. Yet, I doubt if even Jeeves regularly cast an eye over Iris Oifigiuil before turning in for the night.

Professor Andrew Ashworth has seriously challenged our ready acceptance of the principle that ignorance of the criminal law is no excuse. See his article “Ignorance of the Criminal Law, and Duties to Avoid It” (2011) 74 Modern Law Review 1 and reprinted in his book, Positive Obligations in Criminal Law (Oxford: Hart, 2013). I cannot do justice here to the powerful critique he offers, but would urge readers to study it. As he notes, the principle is by no means universally applied. He mentions, for example, S v De Blom (1977) 3 SA 513 where a South African appeal court held that the defendant’s ignorance of a law prohibiting her from taking jewellery out of the country negated her mens rea for the offence. He recommends, first, that there should be a defence of excusable ignorance of the criminal law, but this should be based on an objective standard – what could reasonably be expected of an individual in the defendant’s position. He also makes a strong argument for greater efforts on the part of governments to bring legislation creating new offences, including so-called regulatory offences, to public attention. As he says, this is particularly important where offences are so defined as to be capable of commission by omission, an increasingly common feature of regulatory legislation. He further draws attention to the particular problems encountered by children in becoming aware of the criminal law, especially in jurisdictions like England and Wales (and Ireland) with a low age of criminal responsibility.

Granted, there are strong prudential grounds for adhering to the general maxim that ignorance of the criminal law is no excuse and, for that reason, courts are most unlikely to abolish it, although they should be prepared to consider carving out some limited exceptions to it. But, as a quid pro quo for retaining the principle, governments should be obliged to take effective steps to bring newly created criminal offences to public attention. That obligation should be even more compelling when offences are created by statutory instrument. As to how this might be done, some inspiration can be had from the wording of s. 3(3) of the Statutory Instruments Act 1947 which, as already noted, refers to steps being taken to bring an offence “to the notice of the public or of persons likely to be affected by it” (unless published in Iris Oifigiuil). My point is that publication in Iris Oifigiuil is simply not enough, and never has been. At a minimum there should be a government press release announcing the creation of the new offence and describing its ingredients in plain terms. The mainstream and social media would hopefully take note, especially if the new offence was in any way topical. Press releases on new criminal law statutes and bills are often issued by the Department of Justice and Equality, but I have yet to see any on statutory instruments.

Treating ignorance of the law as a mitigating factor at sentencing is a less contentious proposition and it is probably an accepted principle, even as matters stand. After all, ignorance of the law may reduce a person’s moral blameworthiness or culpability. The overarching principle of sentencing in Ireland is that a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. Gravity is assessed by reference to the harm caused or risked and the offender’s culpability. The essential question will generally be whether it was reasonable or understandable for the offender to have been unaware of the law that he or she contravened. If it was, some mitigation may be granted. However, by way of qualification, I suggest that a court is also entitled, in an appropriate case, to take account of the inherent moral gravity or reprehensible nature of the offending conduct. For instance, many persons prosecuted for the offence of coercive control contrary to s. 39 of the Domestic Violence Act 2018 (which entered into effect on 1 January 2019) will probably be unaware that their conduct fell within the definition of that offence. Yet, if their abusive conduct was sufficiently egregious, they were never morally entitled to presume that it was legally permitted. In other circumstances, however, where an offender was genuinely and reasonably unaware of the criminality of his or her conduct, and thereby less culpable, mitigation may be warranted. The kind of offence involved in De Blom, the South African case mentioned earlier, would be a good example of that.

The judgment as a vehicle for moral reasoning: A note on McD [2021] IECA 31

Many countries around the world are resorting to formal guidelines as a means of structuring judicial sentencing discretion. Ireland is about to follow suit now that a Sentencing Guidelines and Information Committee has been established under the Judicial Council Act 2019. In the absence of such guidelines, trial courts (in common-law countries at least) must rely mainly on general principles developed over time by senior appeal courts. Those courts sometimes go further and recommend sentence ranges for particular offences, as our courts have done in recent years. Each of these structuring mechanisms has its own strengths and weaknesses, and I don’t propose to consider those in any detail here. (But, as an advance publicity plug, they will be considered in a forthcoming book of mine, Sentencing: A Modern Introduction, which in turn explains why blogging has been light of late). All I want to suggest here is that appeal court judgments have one distinct advantage over formal guidelines, and that is the opportunity to engage in moral reasoning. In other words, they can explain in depth the rationale for an existing principle or a new one then being developed, as the case may be. Guidelines, on the other hand, tend merely to state the principle without articulating a rationale.

The judgment of the Court of Appeal (Edwards J) in McD [2021] IECA 31 is important for a number of reasons and other aspects of it will be addressed in a later post. Here, I want to concentrate on its treatment of one particular aggravating factor – the photographing or video recording of a sexual assault being perpetrated against a victim. The background to the case is briefly as follows. In August 2015, when the appellant was between 16 and 17 years of age, he met with a girl who was in fact 12 and half years of age though she told him that she was 14 years. She had contacted him through Facebook, and when they met she was accompanied by one friend while he as accompanied by several. He succeeded in getting her to a secluded spot where he made her kneel on the ground and take his penis in her mouth. While this was happening the appellant produced his mobile phone and videoed what he was doing to her. Some of his friends who had by then joined them took still photographs of what was happening, and these were shown to the victim.

The appellant and the victim met again a few days later, and again at her suggestion. There were various friends present on this occasion as well, but the appellant succeeded in isolating the victim and once more he engaged in oral sex with her. Further, he told her that she had to do the same with his friend or he (the appellant) would show the photographs from the previous occasion to members of a boxing club in which the victim was involved. In light of that threat, she did as she was instructed. The other male, the appellant’s co-accused, was dealt with separately and sentenced as a child under the age of 18. Owing to the significant lapse of time (which seems to have been largely explained) between offence and sentence, the appellant had to be sentenced as an adult, though his age at the time of the offence was properly treated as a mitigating factor. On pleading guilty to two counts of defilement of a child under the age of 15, the appellant was sentenced to four years’ imprisonment and this sentence was upheld on appeal.

There were certainly aggravating factors as well, including the age disparity between the parties (even if the appellant didn’t realise the full extent of it) and the recording and photographing of the offence which, as the Court of Appeal said (para. 73), could not be treated as anything other than aggravating. There were precedents in Ireland and elsewhere, and several of them are mentioned in the judgment, for treating this factor as aggravating, but the principle stands to reason in any event.

The Court of Appeal explained at length why the recording of an offence in this manner should be treated as aggravating. It identified two main reasons:

“First, it is indicative of significantly increased culpability on the part of the offender. Secondly, it adds to the harm done to the victim by the core offending conduct.” (Para 74).

As to the first of these, the Court explained that such behaviour “self-evidently involves deliberately and consciously subjecting the victim to a further layer or level of violation and is more culpable on that account alone regardless of the motivation” (Para. 76). Evidence of malicious motivation may aggravate even further, but even more reprehensible, and worthy of greater censure, is the sharing of the images or publishing them in any way (Para. 78). As to victim impact, the Court said where there has been a recording, the victim is “severely degraded by the process to a degree over and above the degradation and violation inherent in the basic crime” (Para. 79). This is undoubtedly true.

In England and Wales, the Sentencing Council’s Definitive Guideline on Sexual Offences includes “recording of offence” as one of the culpability factors to be considered when identifying the appropriate starting point and sentence range for certain offences, including rape and sexual assault. In the case of sexual acts with young children, this factor is described as “sexual images of victim recorded, retained, solicited or shared.” Formally, therefore, the law in England and Wales is the same as it is here. In both jurisdictions, the recording of the offence is a serious aggravating factor. However, in England and Wales, the principle is summarised in three words: “recording of offence” (or nine or ten words at most). This is a feature of formal guidelines: they consist essentially of peremptory commands, but they do not explain the rationale for those commands. Of course, the guidelines are the product of moral reasoning on the part of the body responsible for formulating them. There may well be background documents setting out the rationale for the contents of a guideline, but even if these are available, they will seldom be consulted. It is the guideline itself, after all, that is “definitive.”

An appeal court judgment, by contrast, can explain and analyse the reasons why a particular factor should be treated as mitigating, aggravating or neither. As such, it has far greater impact than a brief, bald statement of a principle in a guideline. Later courts can dwell on the reasoning and adopt or adapt it in any similar cases coming before them. Equally importantly, defendants and victims are being told in clear, authoritative terms why the factor in question is relevant and significant in the particular case. This communicative dimension is a critically important aspect of sentencing. After all, a sentence is primarily intended to express censure, though it may serve other penological purposes as well. A judgment can communicate in a way that a guideline cannot.

None of this is intended as an argument against guidelines which can be effective in promoting consistency of approach and, up to a point, consistency of outcome. Rather it is an argument for designing guideline systems in a way that will foster the development of a productive synergy between courts and guideline-setting bodies. Apart from anything else, courts usually have to address newly emerging factors before a guideline setting authority ever has the opportunity to deal with them. This was true of the recording of sexual assaults, a practice that was largely unknown before the advent of mobile phones with photographing and recording functions. The sentencing provisions of the Judicial Council Act 2019 seem to have been hastily drafted and they fail, for example, to specify if courts remain empowered to deliver guideline judgments, even after the Council begins to adopt guidelines. It does appear, however, from s. 92, read in conjunction with s. 2 and s. 91, that the only guidelines to which courts will be statutorily required to “have regard” are those produced by the Council. If conflicts eventually materialise between Council guidelines and formal guideline judgments already delivered by the Court of Appeal or Supreme Court, we will find ourselves living in interesting times. However, leaving all that aside for now, the point I wish to make is that appeal court judgments, as exemplified by McD, will (and should) retain a vital role in the development and elaboration of sentencing jurisprudence. Guidelines should therefore be sufficiently flexible and open to amendment as to allow for the incorporation of insights derived from judgments. One positive feature of the 2019 Act is that it envisages that the Sentencing Guidelines and Information Committee will keep existing guidelines under review as well as proposing new ones.

I have been dwelling here on the value of appeal court judgments, but similar observations may be made of trial court sentencing judgments. The problem is that the latter are very seldom reported, though key extracts from them sometimes appear in appeal court judgments – though only, of course, where there has been an appeal. Trial judges, many of whom have immense sentencing experience. should not hesitate to make publicly available, preferably on the Courts Service website, those of their judgments that deal with some aspect of sentencing law or some general sentencing principle. This is sometimes done in England, a recent example being the judgment of Mr Justice Fraser in R v Jennifer Johnson (Lewes Crown Court, 19 May 2021) explaining the sentence of six years he imposed on the defendant for perjury and perverting the course of justice, offences that related to the murder of two young girls in 1986. It is published on the website of the Judiciary of England and Wales: https://www.judiciary.uk. I learned of this judgment from a series of perceptive tweets by Umar Azmeh, a leading English sentencing scholar and criminal practitioner.

The NUIG Law Society at 100: Three short historical reflections

The NUI Galway Law Society is marking its centenary and, although everything must be done remotely, the occasion is being marked in style by today’s law students or, as Justinian in his Institutes more elegantly described them: cupida legum iuventus (“young people eager to study the law”). As someone who seems to have been around for most of that century, I began to muse about a few matters historical.

Was the rule of law invented in Galway?

Albert Venn Dicey (1835-1922) was one of the leading English academic lawyers of the late nineteenth and early twentieth centuries. Indeed, he was a fairly significant political figure as well, if only because of all the energy he expended on opposing Home Rule for Ireland. He was also a firm opponent of women’s suffrage. After his appointment as Vinerian Professor of English Law at Oxford in 1882, he produced his best known work, Introduction to the Study of the Law of the Constitution (1885, with many subsequent editions). Today, it is remembered and cited primarily for its two big ideas: parliamentary sovereignty and the rule of law. Parliamentary sovereignty, according to Dicey, meant that parliament has “the right to make or unmake any law whatever” and “no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament.” This scarcely reflects the situation today but parliamentary sovereignty still has real meaning, as illustrated by the Prorogation Case (R (Miller) v Prime Minister [2019] UKSC 41).

The rule of law is, of course, the ultimate “essentially contested concept” (to use Gallie’s famous phrase), and there are many versions of it (often classified by theorists as “thick” and “thin”), but most adopt Dicey as their touchstone. He claimed that the rule of law, as it applied in the United Kingdom at least, had three elements or qualities. First, it was antithetical to any notion of arbitrary, discretionary power; all power must be duly authorised. Secondly, all people and categories of people are subject to the same law unlike, for example, the regime then prevailing in France where there was one body of law for ordinary citizens and another for public officials. Thirdly, constitutional law (again in the United Kingdom) was “the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.” See generally, Jowell, “The Rule of Law” in Jowell and O Cinneide (eds), The Changing Constitution 9th ed (Oxford University Press, 2019).

Very few ideas are entirely original. Most are adopted from, inspired by or built upon the work of others. Dicey was admirably candid in acknowledging his intellectual debt to previous writers. In his preface to the first edition of the Introduction, he wrote:

“Not a page of my lectures could have been written without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or Freeman, whose books are in the hands of every student. To three of these authors in particular I am so deeply indebted that it is a duty no less than a pleasure to make special acknowledgement of the extent of my obligations. Professor Hearn’s Government of England has taught me more than any other single work of the way in which the labours of lawyers established in early times the elementary principles which form the basis of the constitution.”

Some later scholars have gone further and attributed Dicey’s ideas about the rule of law almost entirely to William Hearn, and especially to his book The Government of England. See, for example, Arndt, “The origins of Dicey’s concept of the ‘rule of law'” (1957) 31 Australian Law Journal 117; Richard A Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapel Hill, NC: 1980) and a review of that book by John V Orth (1982) 80 Michigan Law Review 753. Some are not quite so convinced but, going by Dicey’s own words alone, he was clearly very strongly influenced by Hearn’s work.

Who, then, was William Hearn? He was born in County Cavan in 1826, and studied both classics and law at Trinity College Dublin. After further studies at the King’s Inns (Dublin) and Lincoln’s Inns (London), he was called to the Irish Bar in 1853. In 1849, he was appointed to the Professorship of Greek here at Queen’s College Galway (as NUIG was then called), a post he held until the end of 1854 when he was selected for a professorship of modern history and literature, political economy and logic at the newly-established University of Melbourne to which he moved in 1855. His main academic interests were in the field of political and economic theory, though I’m sure he was a dab hand at translating Homer and Aeschylus as well. In 1873 he was appointed Dean of the newly-established Law Faculty at Melbourne, and he remained in that city until his death in 1888. Hearn wrote several well-regarded books including Plutology (1863) and The Government of England (1867). It was the latter work that most influenced Dicey, particularly in relation to the idea of the rule of law. Great works like that don’t write themselves overnight, so is there a possibility that Hearn began thinking about it or even writing it while in Galway, perhaps in some nook or corner of the Quadrangle which is all the university consisted of at the time? Maybe that’s a bit fanciful, but we can truly say that we had a hand in establishing the Melbourne University Law School which now ranks No 1 in Australia and No. 11 in the world (QS rankings), And yes, Melbourne still has a William Hearn Professorship of Law, currently held by the Dean, Professor Pip Nicholson. For a full account of Hearn’s life, see the biographical essay by J.A. La Nauze in the Australian Dictionary of Biography at http://adb.anu.edu.au/biography/hearn-william-edward-3743.

Our one and only Law Lord

NUI Galway, as it is now called, has produced only one Law Lord since its foundation in 1845 and it will never produce another. John Atkinson (1844-1932) was born in Drogheda and received his secondary education in Belfast before attending what was then Queen’s College Galway from 1858 to 1865. He had an outstanding academic record in both science and law, and graduated with a first-class honours LLB degree. He was, by all accounts, a keen debater and was Auditor of the Literary and Debating Society in 1862-1863. After qualifying as a barrister at the King’s Inns, he practised on the Munster Circuit. Later, in 1890, he was called to the English bar. But there was always the lure of politics and Atkinson, like our friend Dicey, was a staunch opponent of Home Rule. He served as a Conservative MP for North Londonderry (saving your presence) from 1895 to 1905. Previously, he had been Solicitor General for Ireland from 1889 to 1892 and Attorney General in 1892. He served as Attorney General again from 1895 to 1905. As MP, he contributed much to the drafting of the Land Law (Ireland) Act 1896 and the Local Government Act 1898.

Then, to the surprise of many, he was made a Lord of Appeal in Ordinary (a judicial member of the House of Lords) in 1905 and created Baron Atkinson of Glenwilliam. There is a story behind the title. His father, Edward Atkinson, was a wealthy doctor who, in 1851, acquired Glenwilliam Castle, near Ballingarry in County Limerick. According to one version of history, he won it in a game of cards but the better view seems to be that he bought it for about £3,000. He later bought Skea Hall, near Enniskillen. By all accounts, Kate Coll, Eamon De Valera’s mother, worked at Glenwilliam as a young woman before emigrating to America in 1879. In a letter to the Irish Times “De Valera’s Reprieve” (31 January 1997), Cecil Mills claimed that the Atkinsons supported de Valera in his youth and even contributed to his education. He also suggested that Baron John Atkinson may have used his good offices to save de Valera from being executed in 1916. Ronan Fanning in his biography of de Valera mentions that Kate Coll worked at Glenwilliam but says nothing about any Atkinson involvement in the reprieve. His theory is that de Valera was lucky enough to survive because he was not at the time considered important enough to be executed.

John Atkinson was the first and only person to be appointed directly from the Irish bar to the House of Lords. His appointment was criticised at the time by some who felt that he was too political while others may have questioned his legal expertise. However, he confounded the critics, mainly by keeping his head down and concentrating on the job at hand. Robert Heuston, Lives of the Lord Chancellors 1885-1940 (Oxford, 1964), p. 62 says of him: “He was not as distinguished a lawyer as Lindley [his predecessor], but he was a good Law Lord.” Atkinson retired in 1928, died in London in 1932 and is buried in Dean’s Grange Cemetery, Dublin. In a letter reproduced in Heuston (pp. 303-304), he describes the circumstances of his retirement:

“The Chancellor asked me to call upon him. I did call. He said the scurrilous press of Quebec had abused the Privy Council and the said the members were all old fogies, that I was the oldest of the old fogies and had better resign. Of course I would not think of begging not to be dismissed, and assured him that I would resign if he wished it, and I did so.”

By then, he was 84 years of age and there was no formal retirement age for judges. They often had to be “eased” out in one way of another. In fact, there had been a previous attempt in 1915 to get Atkinson to retire in favour of James Campbell (Baron Glenavy), but he refused to budge.

Atkinson certainly ranks as one of our more distinguished graduates but he seems entirely forgotten. Would the Literary and Debating Society ever consider inaugurating an annual Atkinson debate in his memory?

As I said at the outset, we will never produce another Law Lord because the House of Lords as a judicial body was abolished in 2009 and replaced by the present UK Supreme Court. So far, only one of our graduates has served on the Irish Supreme Court and that is Seamus Henchy (1917-2009) who was a student here in the 1930s and graduated with a B.A. and M.A. in Celtic Studies. He is the subject of an excellent biographical essay by Dr Kevin Costello in the Dictionary of Irish Biography which is available online and in print in university libraries. Of course, that is just the story so far. There are doubtless future Supreme Court judges among our present and future graduates. When Ruth Bader Ginsburg was once asked what would be an acceptable number of women justices on the US Supreme Court, she replied: “Nine, because throughout most of its history it has consisted of nine men.” Likewise, if asked what would be an appropriate number of NUIG graduates on our Supreme Court, I would reply “ten” (the full complement), just to compensate for past deficits. (I should add that the aforementioned Dictionary of Irish Biography also has an excellent biographical essay on John Atkinson by Pauric J. Dempsey).

Where would we be without Mayo?

Today, there is no shortage of criminal law textbooks and treatises, but it was a different story until the mid-twentieth century. In England, there was, of course, Archbold which takes it name from a work by John Frederick Archbold (1785-‘1870), A Summary of the Law Relative to Pleading and Evidence in Criminal Cases, first published in London and Dublin in 1822. Archbold himself was born in Dublin and, according to the Oxford Dictionary of National Biography, he “did not marry, and with no recorded interests outside the law he devoted his life to his work, becoming one of the most prolific writers of legal treatises and digests in the nineteenth century” (a life well lived, I am sure you will agree). However, Archbold was and essentially remains a work by and for practitioners. Throughout the first half of the twentieth century, there were really only two books that might qualify as academic treatises on criminal law: Russell on Crime and Kenny’s Outlines of Criminal Law. All this changed with the appearance of Glanville Williams’s Criminal Law: The General Part in 1953, the first edition of Smith and Hogan, Criminal Law in 1965 and the establishment of the Criminal Law Review in 1954.

Russell on Crime was first published in 1819 with the 12th and last edition appearing in 1964. Kenny’s Outlines was first published in 1902. That and the next 12 editions were based on lectures the author gave at Cambridge. As he wrote in his preface to the 13th edition in 1929:

“When reducing [those lectures] into the form of a book, I kept in view the needs of two classes of readers. For a general outline of Criminal Law may prove useful not only to young men preparing for academical or professional examinations, but also to many older men when called upon to undertake, without previous legal training, the duties of a justice of the peace”

The Outlines ran to almost 20 editions until the mid-1960s. By then the original authors of Russell and Kenny were long since dead (Kenny having died in 1930), and the later editions of both were written by the same person, JWC Turner, a Cambridge academic, as Kenny had been. He seems to have agreed with himself, most of the time at least! Kenny’s Outlines was always an authoritative, economically written work. As one of those antiques (of rapidly diminishing value) who taught criminal law before we had the Non-Fatal Offences Against the Person Act 1997 or the Criminal Law (Theft and Fraud Offences) Act 2001, I was always glad to have resort to a later edition of the Outlines, picked up decades ago in London, for information about assault and battery, wounding, larceny, embezzlement and other interesting offences we had at the time.

Courtney Stanhope Kenny (1847-1930) was a native of Yorkshire where his father, like many other members of the family, was a Justice of the Peace. He spent most of his life at Cambridge University which he entered as a mature student in 1871, though he also practised for a time as a barrister and was a Liberal MP representing a Yorkshire constituency for some years in the 1880s. He resigned from Parliament in 1888 on being appointed to a Readership in Law at Cambridge and, in 1907, he succeeded Maitland as the Downing Professor of the Laws of England. As already noted, he based the various editions of the Outlines on the criminal law course he taught at Cambridge for 40 years. He may have been born in Yorkshire but he was of good Mayo stock. His grandfather, Mason Stanhope Kenny, a medical doctor, was born in Roxborough, Ballinrobe in County Mayo. The family were millers and landowners who occupied the “big house”, Robe Villa, in the town. Mason Kenny settled in Yorkshire in the early 1800s, and one of his sons, William Fenton Kenny, was the father of the author of the Outlines.

In my young days in Mayo, and long before I was cupidus legum. the Kenny family still lived in Ballinrobe. One of them, Courtney Kenny (son of Stanhope Kenny – the names obviously stayed in the family), was a highly accomplished classical pianist and harpsichordist. He did an enormous amount to promote classical music and opera in Mayo and around the West of Ireland as well as having a stellar career at Wexford Opera, Sadler’s Wells, Glyndebourne and elsewhere. He didn’t, as they say, take his musical talent from the wind: his mother was a niece of Percy French. To the best of my knowledge, he now lives in England but I do recall him being honoured at a special occasion in Ballinrobe a few years ago.

A superb new book on English sentencing law and practice

In a previous post (“England adopts a new sentencing code”, 29 November 2020), I wrote about the English Sentencing Act 2020 which is formally designated as the Sentencing Code. This was the product of a major research and consolidation exercise undertaken by the Law Commission of England and Wales under the direction of Commissioner (and Professor) David Ormerod whose contribution to English criminal law has been, and continues to be, truly monumental. The two lead researchers for the project were Dr Lyndon Harris and Sebastian Walker who have recently produced a magnificent book, Sentencing Principles, Procedure and Practice 2021 (London: Sweet and Maxwell, 2020). Both authors are now practising barristers, university lecturers and well established scholars, and the (almost) 1800-page volume they have co-authored will become the bible for criminal law practitioners in England and Wales. It will also be an invaluable resource for anyone engaged in sentencing research because of its unrivalled, authoritative account of the current law and its analysis of general sentencing principles and practice. I gather that it is to be an annual publication.

Harris and Walker (as it will doubtless become known) is divided into two main parts. Part A deals with sentencing powers and procedure, The first chapter, running to more than 100 pages, will prove most valuable in any common law jurisdiction, including Ireland, for its coverage of general sentencing principles. The remaining chapters of Part A describe the entire sentencing process in a logical, sequential order beginning with pre-sentence matters and then covering the sentencing hearing, primary disposals (the main sentencing options), secondary orders, the sentencing of children and young persons, mental health disposals and several other topics. For each topic the text of the governing legislation is reproduced. In many instance, this consists of the relevant sections of the Sentencing Code, but a great deal of other legislation is included as well. There is also extensive commentary with reference to appropriate case law.

Part B deals with offences or, more specifically, the approach to be adopted in sentencing the more commonly prosecuted serious offences. By now, most of these are covered by Sentencing Council definitive guidelines but a few are not, in which case the Council’s General Guideline -Overarching Principles should be consulted, as it lists factors that are relevant to a wide range of cases. Case law has greatly diminished in importance because the Court of Appeal (Criminal Division) is now largely concerned with the correct application of the guidelines. Therefore, case law that does not more than illustrate how similar cases were previously sentenced is no longer that relevant or, indeed, welcomed. Harris and Walker neatly summarises the present situation (p. 1154): “if it is not necessary to refer to a case, it is necessary to not refer to it.” But this is not to say that case law has become entirely irrelevant. On the contrary, Court of Appeal judgments continue to cite and analyse earlier authorities. However, case law is now seldom useful unless it helps in the interpretation of a guideline or elucidates some matter not covered by a guideline. Part B of Harris and Walker therefore refers to and summarises a great deal of case law much of which will be very useful to Irish practitioners, especially where it deals with the general approach to the sentencing of specific offences. To take just a few random examples, the case law on false imprisonment and child abduction, weapons and firearms offences, misconduct in public office and money laundering will be very useful for comparative purposes here and elsewhere.

Of even greater value from a comparative perspective are many of the sections in the first chapter dealing with general sentencing principles. Again to take a few random examples, the sections on taking offences into consideration, concurrent and consecutive sentences, the totality principle, double counting in the treatment of aggravating and mitigating factors are particularly useful. Chapter 3 has an excellent and detailed treatment of establishing the factual basis of sentence including the interpretation of jury verdicts, Newton hearings and many related matters which are just as likely to arise here as in England and Wales (see, for example, People (DPP) v Mahon [2019] IESC 24, dealing with the interpretation of jury verdicts).

The final piece of good news is that this book is excellent value at £99 and can be ordered directly from Sweet and Maxwell (London): http://www.sweetandmaxwell.co.uk/

Sentencing guidance for witness intimidation – and more on taking offences into consideration

In Lennon [2021] IECA 30 the Court of Appeal offered guidance on sentencing for witness intimidation, and it addressed the more general questions of taking offences into consideration and setting a headline sentence. The case is also a stark reminder of the importance of statutory maximum sentences. The background to the case, which came before the Court as an undue leniency application by the DPP, is described in detail in the judgment. Essentially, the respondent (Lennon) had been prosecuted in the District Court for a road traffic offence and the victim was called as a witness. Having been convicted of that offence, he appealed to the Circuit Court where the victim would again be required to testify because of it being a de novo hearing. On the night before that appeal was due to be heard the respondent approached the victim’s house and threw what appeared to be part of a door lock against the porch. On another night, about six weeks later, he approached the victim’s house again, but this time he was carrying a plank with which he seriously assaulted the victim and issued threats to him. The victim had to be hospitalised and suffered permanent facial scarring from this attack. As a result of the first incident, the victim did not attend the Circuit Court appeal.

The respondent was charged with two counts of witness intimidation as well as assault causing harm, criminal damage (to the CCTV system at the victim’s home), producing an article capable of causing serious injury and threatening to kill or cause serious harm. He pleaded guilty (apparently to all these charges). In the Circuit Court, the trial judge said that he was going to sentence all the counts “globally.” He imposed four-and-a-half years’ imprisonment for the assault offence (the maximum being five years) and took all the remaining offences into consideration. He said that if he were to nominate a headline sentence it would be “between six and seven years in relation to all of the counts.” For reasons to be discussed, the Court of Appeal found this sentence to be unduly lenient and substituted a term of six years’ imprisonment to run from the date when the respondent was first taken into custody. The respondent had 72 previous convictions including some for assault, assault causing harm, arson. false imprisonment and robbery.

The major problem with this sentence, as the Court of Appeal identified, was that the more serious offences (those involving witness intimidation) were taken into consideration, with a specific sentence being imposed for only one of the remaining (and less serious) offences, namely, assault causing harm. Under s. 41 of the Criminal Justice Act 1999, as amended by s. 16 of the Criminal Justice (Amendment) Act 2009, intimidating a witness or juror carries a maximum sentence of 15 years’ imprisonment. Assault causing harm (s. 3 of the Non-Fatal Offences against the Person Act 1997) carries a maximum of five years, while threatening to kill or cause serious harm (s.5 of the same Act) carries a maximum of 10 years. In England and Wales, the maximum sentence for witness intimidation is five years. Here it is three times higher, having been increased in 2009 from 10 to 15 years, largely because of problems then being experienced in the investigation of gangland crime where witness intimidation was perceived to be quite prevalent. See speech by Minister for Justice at the second stage of the Criminal Justice (Amendment) Bill 2009 (Seanad Eireann Debates, vol. 196, no. 15, 14 July 2009). A few years earlier, the law governing the substantive admissibility of previous inconsistent statements had been amended for the same reason (Criminal Justice Act 2006, s.16).

Taking offences into consideration

Taking offences into consideration is a common practice in the Irish courts. Here, it has a statutory basis by virtue of the Criminal Justice Act 1951 s. 8 which, as amended by the Criminal Justice (Miscellaneous Provisions) Act 1997, s.9(1), reads: “Where a person, on being convicted of an offence, admits himself guilty of any other offence and asks to have it taken into consideration in awarding punishment, the Court may, if the Director of Public Prosecutions consents, take it into consideration accordingly.” In England and Wales, on the other hand, the matter remains governed by common law. although there is a Sentencing Council Definitive Guideline on the matter: Offences Taken into Consideration and Totality (2012). For an excellent account of English practice in this area, see Lyndon Harris and Sebastian Walker, Sentencing Principles, Procedure and Practice (London: Sweet and Maxwell, 2020) pp. 71-75.

One reading of s. 8 of the 1951 Act is that it applies solely where a person is convicted of an offence and then admits other offences with which he or she has not been charged. In other words, the defendant gets an opportunity to make a clean breast of it, and avoid the prospect of future prosecution for the offences in question. This seems to have been the origin of the practice. A person who, for example, had committed many thefts and who had been prosecuted, convicted and sentenced to imprisonment for only some of them could be met at the prison gates on his release and charged with some or all of the others (see Nicholson (1948) 32 Cr App R 98). Irish courts, however, give s. 8 a much more expansive interpretation, and they very often “take into consideration” offences with which the defendant has actually been charged and of which he or she has been convicted by plea or otherwise. This practice is well accepted and it is, of course, significant that s. 8 applies in all criminal courts and not just the District Court.

In Casey and Casey [2018] IECA 121; [2018] 2 I,R, 337 the Court of Appeal dealt at some length with this practice. There it was dealing with a burglary spree involving several rather similar offences committed on the same day. It recognised that in such cases a global sentence will often be appropriate, but this could be accomplished in various ways, such as making the individual sentences fully or partially concurrent. With regard to taking offences into consideration, the Court said that it was “preferable, however, not to have regard to [this] expedient” and it proceeded to quote from the Supreme Court in Higgins (unreported, 22 November 1985) which described the practice of taking into consideration offences of which the accused had been convicted as an “undesirable and unsatisfactory procedure. Appropriate sentences should… be imposed on all counts in respect of which an accused person is convicted by a jury.” To which I would add that the same should apply even where the accused has pleaded guilty to some or all of the charges. The relevant passages from Casey and Casey and Higgins were again quoted with approval in Lennon.

Lennon now establishes an important principle that it is to be commended, namely, a more serious offence should not be taken into consideration when sentencing for a less serious offence. The Court of Appeal said (para. 41):

“In this case the sentencing judge adopted a global headline sentence approach but failed to have regard to the importance of setting out clearly the steps he was taking to identify the most serious offence. All appropriate consideration must be given to identifying where on the scale of gravity the offending behaviour lies as regards the most serious offence. Even if it is permissible to take an offence into consideration for which a person has pleaded guilty (see the remarks in The People (DPP) v Casey and Casey quoted above) it is not permissible to take into consideration a more serious offence when imposing sentence for what is clearly in the circumstances a less serious offence.”

I would favour a more restrictive approach to taking offences into consideration, though many practising lawyers might disagree with me. Surely there is a case for insisting that a sentence be imposed for each offence of which a person has been convicted. This would not necessarily, or even probably, lead to more severe penalties overall, because most or all of the custodial sentences (if imposed) would probably be concurrent. Fines could likewise be adjusted. Each offence of conviction would therefore attract some punishment and, consequently, some degree of censure. Just suppose, however unlikely it may be in the circumstances, that Lennon’s conviction for the s. 3 assault were quashed on appeal or review. Where would that leave the remaining offences for which no sentences had been imposed? Section 8(2) of the 1951 Act provides: “If the court takes an offence into consideration, a note of that fact shall be made and filed with the record of the sentence, and the accused shall not be prosecuted for that offence, unless his conviction is reversed on appeal.” So, further prosecution would be possible following a successful defence appeal (though one wonders what would happen if the conviction were quashed by way of judicial review). All of this could be avoided if a sentence were imposed for each offence of conviction in the first place.

Ultimately, however, the Court of Appeal in Lennon left the question open. It said (Para. 57):

“We are of the view that if it is permissible to take offences into consideration for which a plea of guilty has been entered in the Circuit Court (a matter to be finally decided in another case), it is appropriate to do so in respect of the offences of criminal damage and possession of an article. These offences were part of the intimidation and have been reflected in the sentence for the second offence of witness intimidation.”

It would, of course, have been possible to impose separate sentences for these offences as well and make them concurrent with the longest sentence imposed. But it seems that we will be hearing more from the Court in the future about the entire practice of taking offences into consideration.

Guidance on sentencing witness intimidation

In Lennon the Court of Appeal adopted the now conventional tripartite approach by identifying three sentence ranges: 0 to 5 years; 5 to 10 years; 10 to 15 years and, at para. 51 of its judgment, it set out factors that will ordinarily determine the range to which a specific offence should be allocated for the purpose of identifying a headline sentence. Where, for example, the intimidation consisted of an isolated incident, an unplanned or sudden outburst or where there was no violence or threat of violence, it would fall into the lowest category. Where the intimidation involved planning or took place in a person’s home, place of work or place of study, or was accompanied by criminal damage or the use or threat of violence, or involved the use of a weapon or caused harm to a victim or had a detrimental impact on the criminal justice process, it would fall into the middle category. An intimidation offence would fall into the highest category where serious or ongoing harm was inflicted on a victim, where two or more persons were involved (in committing the offence), there was an organised crime element or a sustained campaign of intimidation, where the intimidation was accompanied by other offences against third parties such as false imprisonment or where there was potential for serious harm to the administration of justice. As the Court said, each of the listed forms of behaviour does not have to be present for an offence to be allocated to the relevant category. The trial judge must still consider the presence or absence of each item (and perhaps others, as the list was intended to be indicative only) and the weight to be attributed to each item,

Applying this guidance to the present case, the Court identified a headline sentence of 5 years for the first intimidation offence committed on 2 October 2018, reduced to 3.5 years in light of the guilty plea. This may seem to have been on high side, but there was the aggravating factor that this incident had caused the victim not to attend as a witness at the Circuit Court appeal scheduled for the following day. Both here and elsewhere, impact on the administration of justice is treated as seriously aggravating. As the Court of Appeal had previously said in Maughan [2016] IECA 127 (para. 11): “Any attempt to interfere by intimidation with the legitimate investigation and prosecution of a crime is an offence of the utmost gravity.” In Chinery [2002] 2 Cr App R (S) 55, the English Court of Appeal said that deterrence must always be a consideration in sentencing for witness intimidation.

The second intimidation offence committed on 13th November 2018 was clearly the more serious of the two. This was held to merit a headline sentence of 8 years reduced to 6 years to reflect the guilty plea. For the assault causing harm, the Court of Appeal identified a headline sentence of 5 years (which is actually the statutory maximum, but the offence had a serious impact on the victim and the respondent had previous convictions for similar offences), reduced to 4 years. The Court ordered all these sentences to run concurrently and, with some misgivings (as already noted), decided to take the remaining offences into consideration. The final sentence was therefore 6 years, a significant increase on the 4.5 years imposed by the trial judge.

Setting a headline sentence

The trial judge in Lennon had indicated that the headline sentence for all the offences would be “six or seven years.” The Court of Appeal criticised this approach, saying that the accused, prosecutor, victim and general public are entitled to know where exactly the offence, or combination of offences, is being located on the scale of gravity and to be able to identify the degree of mitigation that has been granted. As the Court pointed out, in this case, the four-and-half year sentence ultimately imposed (taking account of mitigating factors) would represent a 25% reduction on a six-year sentence but a reduction of about 35% on a seven-year sentence. One could possibly go further and suggest that there is a constitutional basis for insisting that a specific headline sentence should always be identified and rationally chosen. Article 40.4 of the Constitution provides: “No citizen shall be deprived of his personal liberty save in accordance with law.” Deprivation of liberty is, therefore, permitted but only in accordance with law. It must surely follow that nobody should be deprived of their liberty for any longer than is legally necessary. After all, we do not subscribe to a forfeiture theory of punishment whereby a person convicted of an offence is automatically liable to any punishment up to the statutory maximum, with anything less treated as a privilege or concession. Everyone has a constitutional right to proportionate punishment except, it seems, where the offence carries an entirely mandatory penalty. Further, proportionality has a procedural as well as a substantive dimension; a sentencing judge must engage with and articulate all the factors that are relevant for the purpose of selecting a proportionate sentence ( R McC [2008] 2 I.R. 92). All of these considerations point to the existence of a judicial obligation to identify precisely the appropriate headline sentence, the adjustments made to it to reflect individual circumstances, thereby indicating how the ultimate sentence was reached.

The importance of maximum sentences

Lennon illustrates yet again the crucial importance of maximum sentences and the need for great care in setting statutory maximums. Courts were always obliged to have regard to the maximum when selecting the penalty in a specific case. But this principle has become immeasurably more significant since the appeal courts began to issue formal and informal guideline judgments. Typically, as in Lennon itself, the court will identify three ranges e.g. zero to 5 years, 5 to 10 years and 10 to 15 years. The guideline sentence is determined by the range to which the particular offence is allocated. Therefore, the higher the maximum, the higher the ranges and the more severe the headline sentences will be. If Lennon had been sentenced in England, where the maximum for witness intimidation is five years, the headline sentence for the more serious of his intimidation offences might have been in the region of 3 to 4 years, with a reduction of up to one-third for the guilty plea, depending on when it was entered. Granted, an English court might have taken a different view of how the remaining sentences should run (concurrently or consecutively) but the sentence for the intimidation offence, taken on its own, would have been much lower than that imposed here. Indeed, it is noteworthy that in Smith [2011] Cr App R (S) 118, to which the Court in Lennon referred, a sentence of two years and eight months was upheld for quite a serious offence of intimidation, although it did not involve a physical assault.

The 10-year sentence specified for witness intimidation when first created as a statutory offence under the Criminal Justice Act 1999 was high enough. There was no empirical evidence I can identify to justify increasing it to 15 years under the Criminal Justice (Amendment) Act 2009. As already noted, there was some concern, and probably genuine concern, about intimidation of witnesses and jurors in gangland crime investigations and trials. Increasing the maximum sentence may have been based on a belief that this would somehow act as a deterrent. If so, the belief was probably misguided. There is nothing to suggest that a maximum of 15 years will be any more of a deterrent than a maximum of 10 years. In fact, all the international research evidence suggests the contrary. Much more could be said on this topic but I can do no better than commend Rory Kelly’s excellent article “Reforming Maximum Sentences and Respecting Ordinal Proportionality” [2018] Criminal Law Review 450. His analysis is just as relevant in Ireland as in England and Wales. He draws attention to the historical contingency of maximum sentences (a point which, as he says, was also made by the (English) Advisory Council on the Penal System in its report, Sentences of Imprisonment (1978)). Maximum sentences tend to be set without any serious consideration of their compatibility with those for other offences of similar, greater or lesser seriousness. Politicians and legislatures are usually responding to the pressures of the moment, as exemplified by the decision here in 2009 to increase the maximum sentence for witness intimidation to 15 years. I would also endorse the recommendation in that article for a general review of maximum sentences with a view to establishing a rational and theoretically sound framework for setting them, and that this review should be undertaken by an independent body. Perhaps this is a task that could be undertaken here by the Sentencing Guidelines and Information Committee operating under the aegis of the Judicial Council. It is after all directly relevant to the Committee’s work. Credible sentencing guidelines can be established only when the relevant maximum sentences are defensible, both in themselves and when viewed in comparison with those for other offences.

Is Lennon a formal guideline judgment?

In O’Sullivan [2020] IECA 331 (para. 30) the Court of Appeal described a formal guideline judgment as “a judgment in which the court says it is providing guidance, in which advance notice was given of the intention to provide guidance, one in which the court attempts to review sentencing for a whole offence or class of offences, and one in which the parties were invited to address the court on aspects of sentencing for the offence or class of offences in question that go beyond issues arising on the facts of the case.” See earlier post below “What exactly is a guideline judgment?” (2 January 2021). Not all of these conditions may have been fulfilled in Lennon. I am not sure, of example, if the Court gave any prior indication of intention to offer guidance for the sentencing the offence in question. However, there are reasons for treating it as a de facto guideline judgment. First, there seem to be very few earlier judgments on witness intimidation, apart from Lehane [2016] IECA 196 (to which the Court referred) and Maughan [2016] IECA 127. There is a considerable number of English authorities, some of which were reviewed in R v Smith [2011] 2 Cr App R (S) 118.

In Lennon, the parties may not have been able to furnish much by way of previous Irish authority. The prosecution is recorded as having drawn the Court’s attention to an English sentencing guideline – presumably the section on witness intimidation in the Magistrates Courts guidelines. There is a Sentencing Council Definitive Guideline on Intimidatory Offences but it is confined to harassment-type offences and does not cover witness intimidation. More importantly, however, in Lennon the prosecution had made general submissions as to the factors that should in general inform the sentencing of witness intimidation. It suggested six principles for this purpose. These, together with the English guideline, which is quite brief, and a passage (also quite brief) from Smith [2011] 2 Cr App R (S) enabled the Court to develop the general guidance set out towards the end of the judgment. This is therefore a guideline judgment in a way, for example, that Sinnott, Long and Joyce [2021] IECA 42, delivered a few days earlier, is not, although Sinnott is valuable on some of the general principles for sentencing money laundering. In all probability, therefore, Lennon is another addition to our small but growing corpus of formal guideline judgments.

Parole – but only for the few

Imagine that in the twenty-first century a country introduces, for the first time, a statutory parole system, but designs it in such a way that it won’t apply to 70 per cent of the prison population. Welcome to Ireland. The Parole Act 2019 has some positive features but it suffers from the major drawback that, when implemented, it will apply only to those serving determinate sentences of eight years or longer and to life prisoners. Under s. 24 only two categories of prisoner are eligible for parole: (1) a life sentence prisoner who has served at least 12 years, and (2) “a person serving a sentence of imprisonment of a term equivalent to or longer than such term as is prescribed in regulations made by the Minister under subsection (3), who has served at least such portion of the sentence as may be prescribed by the Minister in accordance with that subsection.” Thus, the two most fundamental issues one would expect to find clarified in any parole statute, namely the category of qualifying prisoners and the portion of sentence to be served before becoming eligible for parole, are here left to ministerial fiat. However, s. 24(3) significantly restricts the Minister’s powers by providing that in making regulations in respect of those serving determinate sentences, she may specify a term of imprisonment of not less than 8 years and “the portion of such term to be served by a person prior to becoming eligible for parole.” A person serving a statutory minimum term of imprisonment under, for example, drugs or firearms legislation will not be eligible for parole before the expiry of that term.

How 12 years was chosen as the minimum period a life sentence prisoner must serve before being eligible for parole remains a mystery. It seems to have been a case of “think of a number.” I won’t pursue the matter here for two reasons. First, the Act (s 6) is expressed to be without prejudice to the Minister’s power to grant temporary release under the Criminal Justice Act 1960 and the power to commute or remit any punishment under s. 2 of the Criminal Justice Act 1952 which, in turn, derives from the Constitution (Art. 13.6). Life sentence prisoners could therefore be released under either of those provisions although, in the absence of very compelling circumstances, they are nowadays most unlikely to be released any time before the 12-year mark. Secondly, we need to have a discussion about sentencing for murder more generally. Granted, not all lifers are serving sentences for murder, but the vast majority are. On 30 November 2019, there were 359 life prisoners in custody – 346 for “homicide offences” (almost all murders, it may be assumed), 11 for sexual offences and 2 for attempted murder, serious assaults and so forth. Even if the mandatory life sentence for murder is retained (and there are strong arguments against it), consideration should be given to permitting or requiring a judge, when imposing a life sentence, to specify the minimum term the offender must serve before becoming eligible for parole. This, in turn, could be the subject of an appeal.

What should be of greater concern is how few prisoners serving determinate sentences will even qualify for parole. Let us assume that the Minister sets 8 years as the minimum term for the purpose of s 24 of the 2019 Act, though it could be longer. From publicly available data, it is unclear exactly how many prisoners (apart from lifers) are currently serving 8 years or more. However, the statistical snapshot of persons in custody, classified by sentence length, on 30 November 2019 (Irish Prison Service Annual Report 2019, p. 52) shows that 1,913 were serving sentences up to 5 years, 695 sentences of 5 to 10 years, 241 sentences of 10 years or more (and, as already noted, 359 serving life). If half of those in the 5 to 10 year category are serving sentences of less than 8 years it would mean that 2, 261 prisoners (70% of the 3,208 in custody under sentence on that date) would be ineligible for parole.

A survey of committals to prison under sentence in 2019 reveals a similar pattern. 4,314 (76% of the total) of committals were for terms of 12 months or less, 402 for 1 to 2 years, 339 for 2 to 3 years, 401 for 3 to 5 years, 188 for 5 to 10 years, 37 for 10 years or more, and 9 for life. Again, we shall assume that half of the 188 committals in the 5- to 10-year category were for less than 8 years. This means that 5,550 (97% of committals) would never qualify for parole. Discounting the committals for less than 12 months, we are left with a total of 1,376 committals with 1,236 (90%) for less than 8 years.

Essentially, what the Parole Act 2019 does is to formalise the non-statutory system that has been in place since 2001. Under that system, sentences of eight years or more but less than 14 years are reviewed at the halfway mark. Sentences longer than 14 years and life sentences are reviewed once seven years have been served. To be fair, the 2019 Act makes many procedural improvements. For instance, decisions on release will be made by the Parole Board itself whereas now, cases must be referred to the Board by the Minister, through the Prison Service, and the Board merely makes recommendations to the Minister which may be accepted or rejected, though it is understood that they are usually accepted. Given the limited number of prisoners who even qualify to be considered for parole (those serving eight years or more) it is unsurprising that the Board has a small caseload. According to its Annual Report for 2018, a total of 63 prisoners were referred to the Board and all were invited to participate in the process. 41 accepted, 4 declined and the remainder had not replied when the Report was being compiled (in July 2019). As the Report notes, all determinate sentence prisoners are entitled to one-quarter remission and may qualify for one-third. They may not consider it worthwhile participating in the parole process which can be long drawn out.

In 2018, the Parole Board met on 11 occasions and reviewed 122 cases, comprising 45 first reviews and 77 second or subsequent reviews. This immediately raises an economic question. Assuming the numbers stay much the same once the 2019 Act enters into force, does it makes sense to appoint a Board of 12 to 15 members, each of whom is entitled to remuneration and expenses ,as well as a Chief Executive (presumably with an office and some backup staff) to do so little work? It is a great pity that the Act doesn’t devote as much attention to a prisoner’s eligibility for parole as it devotes to the arrangements for the Chief Executive’s superannuation (s. 19).

What is utterly unfathomable is why the Government proceeded with this legislation without undertaking a general review of early release mechanisms of which parole, as now understood, is only one. Instead, it effectively adopted and dressed up a Private Member’s Bill which left much to be desired; it was essentially putting the existing system on a statutory footing. Something equivalent to the Carlisle Review in England and Wales in the late 1980s was clearly needed. See The Parole System in England and Wales: Report of the Review Committee (HMSO, 1988) the recommendations of which formed the basis of the parole provisions in the Criminal Justice Act 1991. This is not to suggest that we should have modelled our parole system on that of England and Wales. Parole arrangements must obviously be tailored according to jurisdiction-specific factors, most notably the size of the sentenced prisoner population. What suits England and Wales with a prison population of about 80,000 will scarcely be appropriate for Ireland with a prison population of 4,000, and only 3,200 of those under sentence (as of 30 November 2019). Individualised parole decisions are seldom possible in countries with large prison populations. In England and Wales, for example, most prisoners serving determinate sentences are released on licence at the halfway mark though, as a result of changes made in 2020, a significant number of prisoners serving determinate sentences for violent and sexual offences must serve two-third of their sentences before being released. The Parole Board deals only with prisoners serving life sentences or extended sentences (though this still representatives a substantial number).

New Zealand might have served as a better model for Ireland. The two countries have similar populations, though I once heard a New Zealand Ambassador to the US claim at a conference there that New Zealand has a population in excess of 30 million when all the sheep are included. However, it has a human population of about 5 million. Its prison population is more than twice ours, standing at 9,000 including 5,800 sentenced prisoners in September 2020. Yet, under its Parole Act 2002, as amended, offenders sentenced to more than 2 years’ imprisonment are eligible for parole after serving one-third of their sentence, unless they were given a longer minimum non-parole period by the sentencing court. Those serving less than two years are released after serving half their sentence. According to its annual report for 2019-20, the New Zealand Parole Board held hearings for about 6,500 prisoners and approved parole for 1,669 (the vast majority serving determinate sentences), a somewhat more impressive workload than the 122 cases reviewed in 2018 by the Irish Parole Board. (The 2019 Report has recently been launched).

There are many important policy issues connected with parole of which I will mention only two here: (1) retribution and risk, and (2) coordinating early release mechanisms.

Retribution and risk

Risk is often assumed to be the key consideration in parole decisions. Release should be granted only to those who are assessed as posing a low risk of re-offending. Yet, if risk were the sole consideration, some prisoners would be suitable for parole as soon they started serving their sentence. This might hold true, for example, of an elderly offender convicted of offences committed in the distant past who is now considered most unlikely to reoffend. Other considerations must also, however, be placed in the balance. Society expects offenders to serve a reasonable portion of their deserved sentences, irrespective of the risk of re-offending. Desert is not, of course, the only competing factor. General deterrence remains a legitimate sentencing purpose provided it does not lead to disproportionately heavy penalties. A system that allowed persons convicted of serious offences to be released after serving no more than a small fraction of their sentences (because they were deemed to be very low risk) might be viewed as posing a weak deterrent.

Human rights considerations may also come into play, though in a somewhat paradoxical manner. One feature of international human rights law as it has developed, globally and regionally, in recent decades is the extent to which it uses the criminal law as a sword rather than a shield. In other words, it increasingly insists that states should use the criminal law as a response to human rights violations. There is a growing academic literature on this topic. See, in particular, Mattia Pinto’s superb article “Historical trends of human rights gone criminal” (2020) 42:4 Human Rights Quarterly 729. Under the European Convention on Human Rights, this is largely due to the doctrine of positive obligations – the idea that a state must not only refrain from violating individual rights itself but must also take positive steps to prevent violations by its agents or private parties, as far as reasonably possible, and when violations (especially of the right to life or the right to free from torture and inhuman or degrading treatment or punishment) have occurred, to undertake an effective and independent investigation with the aim of bringing the perpetrators to justice. This obligation extends to imposing a punishment that adequately reflects the gravity of the offending conduct and the harm caused to the victim. See, for example, Nikolova v Bulgaria (2009) 46 EHRR 40 and Gafgen v Germany (2011) 53 EHRR 1. It follows that a state might well be in violation of its Convention obligations if it imposed a suitably heavy penalty but then failed to enforce it at all or enforced it only to a slight degree.

For all these reasons, the balance to be struck between giving effect to sentencing purposes, notably desert, and permitting release where the level of risk is sufficiently low is an important and delicate one. Parole laws generally attempt to strike this balance by specifying the portion of a sentence a prisoner must serve before becoming eligible for release. In New Zealand, as already noted, prisoners must ordinarily serve one-third of their sentence before becoming eligible. Likewise under the Criminal Justice Act 1967 which first introduced parole in England and Wales, a prisoner became eligible upon serving one-third of his or her sentence or 12 months, whichever expired later. Remission, which then stood at one-third, was retained. Under our Parole Act 2019, this crucial determination is to made by ministerial order which is a very strange arrangement indeed. One would have thought that, within a democratic system of government, such a fundamental issue was quintessentially one to determined by the legislature.

Co-ordinating release mechanisms

The 2019 Act clearly does not intend parole to replace any of the existing early release mechanisms. As already noted, s. 6 provides that the Act is without prejudice to the power to grant temporary release under s. 2 of the Criminal Justice Act 1960, the power of commutation or remission under s. 23 of the Criminal Justice Act 1951 and the rules providing for the grant of ordinary remission to prisoners. This, of course, makes sense in light of the very limited circumstances in which parole stricto sensu will be available. Prisoners serving less than eight years should retain their entitlement to standard remission and have the opportunity to seek or be granted temporary release at some point before qualifying for remission. But this applies also to those who qualify for parole. Considering that everyone serving a determinate sentence can, for all practical purposes, expect to be released at the three-quarter mark of their sentence, and that there is always an opportunity to seek enhanced remission of one-third, the portion of sentence to be served before becoming eligible for parole can scarcely be more than one-half of the sentence (and possibly less). A person serving eight years would then qualify for parole, though not necessarily get it, after serving four years. If released at that point, he or she would remain on parole for two years, taking remission into account. (Under s. 28(3) of the 2019 Act, a parole order has effect until a determinate sentence expires, but remission brings such a sentence to an end). A person serving six years will not qualify for parole, but can expect to be released after serving four-and-a-half years with remission. Granted, there is the difference that remission brings the sentence to an end, while parole is merely conditional release with the possibility of recall. A prisoner might also secure temporary release before qualifying for either parole or remission. But there is at least the theoretical possibility that a person serving a six-year sentence would remain in custody for longer than a person serving an eight-year sentence. It may have been with this in mind that s. 24(4)(d) provides that the Minister, in setting the qualifying periods, shall have regard to “the desirability of equality of treatment with regard to eligibility for consideration for parole, insofar as is possible, between persons serving sentences of imprisonment for life and persons serving sentences of imprisonment for a determinate term, and between persons serving sentences of imprisonment for determinate terms of different lengths…”

Then, there is the awkward question of the part-suspended sentence to which no consideration seems to have been given when the 2019 Act was being drafted and debated. This form of sentence, as it currently operates, is essentially a form of parole. Where a court imposes, say, eight years with the last two conditionally suspended, it is leaving open the possibility that the offender may eventually have to serve all or part of that two years, just as a person released on parole may be recalled. This raises the question of whether there is still any place for the part-suspended sentence, at least for those offenders who will qualify for parole. A person given, say, nine years will so qualify, so should a court imposing a nine-year sentence (or indeed any determinate sentence of eight years or longer) ever suspend any portion of it? Part-suspension is most commonly granted in order to incentivise rehabilitation though there is an unfortunate residual tendency to treat it as a form of mitigation. There is a strong argument to be made that, once the 2019 Act is fully operational, determinate sentences of eight years or longer should never be part-suspended. After all, a person given such a sentence will qualify for consideration by an expert body (the Parole Board) which will be in a position to assess all the relevant factors at a time when a significant portion of the sentence has already been served. The degree of risk a prisoner may pose and his or her amenability to social reintegration or rehabilitation can probably be more reliably assessed at that point. In England and Wales, following a recommendation by the Carlisle Committee (pp. 117-118 of the Report), the part-suspended sentence was abolished by the Criminal Justice Act 1991, largely because of the new parole arrangements then introduced. Admittedly, the situation was slightly different in England and Wales because there was already a parole system in place. However, the Committee’s comment (p. 118) that “the case for the partly suspended sentence is inextricably bound up with the whole question of release mechanisms” remains valid in Ireland today.

Ideally, all these issues should have been considered by an expert body before the parole legislation was introduced. That body could have undertaken a proper study of the purpose of the various early release mechanisms, the way in which they dovetail with each other and the extent, if any, to which they should be retained once parole was introduced. Obviously, that body would also have been expected to consider eligibility for parole in terms of both sentence length and the portion of sentence a prisoner had to serve before qualifying for release. However, I cannot help suspecting that the new parole system won’t be long in operation before such a review is deemed necessary.

Concluding comment,

In their present form, the terms of the Parole Act 2019 bring to mind that enigmatic final sentence of The Great Gatsby: “So we beat on, boats against the current, borne back ceaselessly into the past.” The Act effectively formalises the status quo which originated with the Whitaker Report (Report of the Committee of Inquiry into the Penal System, Pn 3391 (1985)). At that time, most life sentence prisoners were released after seven to ten years, but “subversive” prisoners, including those serving life, had no certainty as to when they would be released. The Committee recommended that, if only on humanitarian grounds, there should be some formal system for reviewing those sentences (para. 7.12). It suggested that a body chaired by a judge be charged with reviewing prison sentences exceeding five years. This was more or less accepted and, in 1989, a Sentence Review Group, chaired by Dr Whitaker himself as it happened, was established to review the cases of prisoners who had served seven years (excluding those convicted of capital murder). The scheme was described in an Appendix to the report, The Management of Offenders: A Five Year Plan, Pn 0789 (1994). By then, the Group was being chaired by Judge Mary Kotsonouris (who has sadly died within the past week) and, based on its recommendations, the Minister had so far released 37 prisoners. In 2001, this task was taken over by a non-statutory parole board which, as already noted, was confined to making recommendations to the Minister and which dealt solely with prisoners serving eight years or longer (as is still the case).

What the Parole Act essentially does is to retain this practice of formally reviewing long sentences. However, parole is meant to be about much more than granting early release. It is about supervised release which, in turn, should assist offenders to become socially reintegrated by helping them to navigate their way around the many obstacles faced by recently released prisoners. And, there is no reason in the world to believe that those sentenced to less than eight years find that the post-release experience any easier than others.

Professor Roger Hood (1936-2020)

On 17 November 2020, the sad and unexpected news began to circulate that Professor Roger Hood had died earlier that day at an Oxford Hospital. The world of criminology had suddenly lost one of its most influential, productive and generous scholars. His academic career spanned more than six decades, beginning with a research post at the London School of Economics from which he had graduated in 1957 and ending with his 30-year tenure of the Directorship of the University of Oxford Centre for Criminology (1973 to 2003), though that was followed by an extraordinarily productive retirement. In this short post it would be impossible to do justice to his many achievements but, fortunately, they are well described in a festschrift published in his honour in 2003: Lucia Zedner and Andrew Ashworth (eds), The Criminological Foundations of Penal Policy: Essays in Honour of Roger Hood (Oxford University Press, 2003). The editors’ introduction provides an excellent account of his scholarly achievements until then but, more fortunately still, he continued his research, mainly on the death penalty, right up to the end of his life.

Leon Radzinowicz, Hermann Mannheim and Max Grunhut are generally regarded as the founders of British criminology. Roger, who belonged to the next generation after them, had a direct connection with all three. His work equalled, and in some respects exceeded, theirs in terms of its influence on the progress of criminology, not only in Britain but throughout the world. He had studied, and subsequently worked, with Mannheim at the LSE. Later he moved to Cambridge where he spent seven years as Assistant Director and Director of Studies at the Institute of Criminology, then directed by its founder, Leon Radzinowicz. This was the beginning of a lifelong close friendship between them. They later collaborated on some pathbreaking historical research and co-authored several important articles on various aspects of sentencing. Grunhut, who, like Mannheim, had fled Nazi Germany, became the first Reader in Criminology at Oxford, the post Roger later inherited, though Nigel Walker held it for a decade or so in between. With the Readership in Criminology came a Fellowship at All Souls College, one of the most prestigious academic positions in the world. Roger always remained deeply committed to the College and added greatly to its lustre.

Much of Roger’s published work, though certainly not of all it, related to sentencing in one way or another. His early work included Sentencing in Magistrates’ Courts (London, 1962), Borstal Re-Assessed (Cambridge and London, 1965), and Sentencing the Motoring Offender (London, 1972). Then in 1992 came Race and Sentencing (Oxford, 1992), a major work based on an analysis of more than 3,000 cases, making it one of the largest empirical studies in criminal justice ever carried out in Britain. It is a model of careful research and even-handed conclusions which included a finding that, proportionately, black offenders were sentenced to imprisonment more often than others, but that when all relevant factors were controlled for, the “race effect” accounted for about 7% of the difference. The findings were controversial at the time but, 30 years on, Race and Sentencing remains a standard, much-cited work.

Roger always had a strong interest in parole as reflected, for example, in a Criminal Law Review exchange between Nigel Walker and himself in 1975 (Walker [1975] Crim. L. R. 540; Hood [1975] Crim. L.R. 545). He later served on the Carlisle Committee whose recommendations formed the basis of the far-reaching changes to the parole system in the Criminal Justice Act 1991. This, in turn, led to important research projects on parole which he undertook with Stephen Shute. Their published work in this area include The Parole System at Work: A Study of Risk Based Decision-Making (Home Office, 2000) and “Protecting the public: Automatic life sentences, parole and high risk offenders” [1996] Crim. L.R. 788.

Perhaps the book for which he is best known among criminal lawyers and historians is Leon Radzinowicz and Roger Hood, The Emergence of Penal Policy in Victorian and Edwardian England (Oxford, 1986, with a paperback edition in 1990). This was actually the fifth volume of A History of English Criminal Law and Its Administration from 1750, the first four volumes having been authored solely by Radzinowicz. The fifth volume, based on an enormous amount of archival research, is a veritable treasure trove of information. It remains indispensable, and always will be, for anyone seeking to investigate the development of penal policies and practices in the nineteenth century, the evolution of the juvenile justice system, the struggle to introduce criminal appeals in the late nineteenth and early twentieth century and much more. The depth and breadth of the scholarship reflected in this book is truly remarkable, and the finished work, with its captivating narrative style, should be a model for legal historians.

The death penalty became one of Roger’s major preoccupations throughout the last few decades of his life. In the late 1980s, he was commissioned by the United Nations to prepare a report on the use of the death penalty in member states. That report was presented in 1988 and formed the basis of his book, The Death Penalty: A Worldwide Perspective, first published by the Clarendon Press, Oxford in 1989 with four subsequent editions, some of the later ones co-authored with Carolyn Hoyle. It has now been translated into several languages. His interest in the death penalty was not solely academic; he was a very committed abolitionist. He worked with the Death Penalty Project in London and lectured on the topic throughout the world. See Carolyn Hoyle’s introductory post on the new blog of the Death Penalty Research Unit at Oxford. He was apparently working on a book on capital punishment in the Caribbean at the time of his death.

The works so far mentioned are only a sample of Roger’s prodigious output. Rather than try to cover all of them, I will mention here just two significant contributions out of many that he made to our thinking about sentencing and about the broader discipline of criminology. His first book, as already noted, was Sentencing in Magistrates’ Courts: A Study in Variations of Policy (1962). This was based largely on an empirical investigation of sentencing practices in 12 urban magistrates’ courts, chosen principally because of their known variations in the use of imprisonment. Roger had taken over the project from a previous researcher and he stamped it with his own incisive and insightful analysis of the problem. Like many of his later works, it can justly be described as “pathbreaking” because at that time, even in the United States, there were very few empirical analyses of variations in judicial sentencing practice. Early on in the book, Roger came to grips with the concepts of equality and consistency as they apply to sentencing. He wrote (p. 14):

“It may be argued, however, that any comparisons of offenders are invalid because all cases are unequal: that the conditions in one case are dissimilar to the conditions in any other. Although this is a valid point, it does not affect the general comparison of cases; by “equality” we do not mean that each case can be exactly compared with another, and that the decisions should be the same for cases “alike” in this sense. By “equality” we mean “equality of consideration”, that is, that similar general considerations can be taken into account when a decision is made. Although in many cases there are probably individual considerations in the minds of magistrates which are not noted in any records, there are certain observable factors (for example, number of previous convictions for criminal offences) that will always be taken into account when an individual is being sentenced. Over all courts the “other” considerations are likely to balance out in such a way that an examination of the objective facts known about the defendant will tell us whether the same factors are being taken into consideration when a certain type of sentence is passed…”

This was an important and enduring insight, distinguishing between consistency of approach and consistency of outcome, a distinction that forms one of the fundamental tenets of Irish sentencing policy today.

Roger was also heavily involved in the debate about the nature and purpose of criminology as a discipline. It is fair to say that, for some decades now, criminology has been undergoing something of an identity crisis. Lucia Zedner has a brilliant chapter on this topic in the 2003 festschrift mentioned earlier. Broadly speaking, there were some, such as the late Stanley Cohen, who saw criminology as branch of social theory, something that was worthy of intellectual inquiry for its own sake. The other perspective, of which Roger was a strong proponent, was that criminologists, through rigorous and dispassionate empirical research, should aim to influence public policy. This, he was always careful to state, was not to undervalue theory. Research and theory should influence one another. Criminologists, while properly aiming to contribute to policy formation, should nonetheless avoid becoming “servants” of politicians or policy-makers who wanted research findings to support or lend respectability to their preferred policy outcomes. Roger spoke and wrote a great deal about this, two of his better known papers on the topic being “Some reflections on the role of criminology in public policy” [1987] Crim. L.R. 527, and “Penal policy and criminological challenges in the new millennium” (2001) 34 Australian and New Zealand Journal of Criminology 1.

Criminology is now, at last, beginning to develop in Ireland. Some universities have created academic posts specifically in that discipline and several have degree courses fully or partly devoted to it. Trinity College Dublin has just established the Dublin University Journal of Criminology which aims to provide a publishing outlet for student research. Undoubtedly, we too will have a debate about the fundamental purpose of the discipline and the role its practitioners ought to play. Anyone embarking on the study of criminology or proposing to specialise in it as an academic should read the Zedner chapter mentioned earlier in order to understand how the discipline developed and the competing ideas about its underlying purpose. For the avoidance of doubt, I am firmly in the Hood camp!

Personal memories

Today, the Oxford Centre for Criminology occupies a fine premises adjacent to the Bodleian Law Library, but for many years it was located in a house on Bevington Road. Over the years there, Roger hosted many visiting academics and researchers from around the world, and I was lucky enough to be one of them for the academic year 1992-1993. Ian O’Donnell had just joined the Centre as research officer, a post he was to hold for a number of years, so there was something of an Irish invasion at the time. During that year, Roger could not possibly have been kinder to us and to all others associated with the Centre. Despite his onerous duties as Director (which involved a constant struggle to find funding for research projects), researcher and teacher, he was always available to offer advice and encouragement. They were also heady days because it was in late 1992 that his book Race and Sentencing was published and that caused quite a stir. His kindness extended well beyond academic support. There were occasional lunches at All Souls and some very enjoyable evenings hosted by him and his wife Nancy at their house on Iffley Road, just a stone’s throw from where another Roger (Bannister) had run the first sub-four-minute mile in 1954. (Incidentally, Sir Roger Bannister was another perfect gentleman. Once during that year, I had lunch with him, entirely by accident because I happened to be seated opposite him, in Pembroke College of which he was then Master. He was a most affable person, and we had a great conversation (dare I say gossip) about British and Irish politics of the day. So, that’s one to tell to the great grandchildren!).

At that time, and for many years before and after, Roger used to organise a weekly seminar in All Souls College with a guest speaker on each occasion. He decided that since the topic always concerned some aspect of sentencing or punishment, it would be useful to have an input from people undergoing punishment. He therefore arranged with the governor of Oxford Prison (which has since closed and been converted to a hotel) for some of the inmates to attend the seminars, accompanied by the governor or a prison officer. It worked out very successfully. After each seminar we would all adjourn to the basement bar of the Randolph Hotel, well known to fans of Inspector Morse, for a meal and a drink or two (but never more than two). The prisoners, apart from being convicted robbers, burglars and fraudsters, were usually the most congenial bunch of guys you could meet. After an hour or so in the Randolph, they would walk back to the prison while the rest of us went our separate ways.

Of course, I met with Roger many times since then, in both Oxford and Galway. He came here on a few occasions to participate in conferences organised by Professor Bill Schabas, then Director of the Human Rights Centre, and also a leading authority on the death penalty. The last occasion on which we met was a particularly happy one. It was in Oxford in August 2019 when there as a seminar at Worcester College led by Professor Julian Roberts (his paper “Sentencing for Murder” was later published in [2020] Criminal Law Review 900-911) followed by a dinner. The real purpose of the occasion was to celebrate the successful completion of a number of doctoral theses on sentencing by Oxford students, including Lyndon Harris and Rory Kelly, now two of England’s leading sentencing scholars, and the progress being made by others. Roger, although sorely missing Nancy who had died earlier that year, was in tremendous form. Generous spirited to the last, he was genuinely delighted to see this new generation of scholars embark on their professional careers.

Roger received many well-deserved honours including a CBE, a Fellowship of the British Academy, and honorary doctorates from a number of universities. He was also made an honorary Queen’s Counsel. In 1986, he received the Sellin-Glueck Award from the American Society of Criminology and, in 2011, the Beccaria Medal from the International Society for Social Defence and for a Humane Criminal Policy.

A superb scholar and a wonderful human being, Roger will be greatly missed by all of us who were privileged to be his friends.

Sentencing for theft

Theft is usually regarded as the least serious property offence, as it does not involve the use of force, home invasion or, necessarily at least, fraud or deception. Essentially, it consists of dishonestly appropriating property without the owner’s consent. It carries a maximum sentence of 10 years’ imprisonment following conviction on indictment (Criminal Justice (Theft and Fraud Offences) Act 2001, s. 4). Like all other indictable offences created by that Act, it may be dealt with summarily provided both the accused and the prosecutor consent and the District Court is satisfied that the facts disclose a minor offence fit to be tried summarily. The maximum sentence following summary conviction is 12 months’ imprisonment, a Class A fine or both.

Some of the difficulties associated with sentencing for theft are illustrated by O’Brien [2020] IECA 271 which arose from the following incident, as described in the judgment (para. 2):

“The [victim], who was 74 years of age, reported that a man called to his home and stated that his cattle trailer had broken down and requested to borrow money from [the victim] to repair the cattle trailer. This male assured [the victim] that he would return at 3 p.m. that day and return the money to him. {The victim], feeling intimidated, loaned this male 200 Euro from his wallet and returned to his bedroom and placed his wallet in his jacket pocket. The male then went into his bedroom and took 100 Euro from his wallet without his permission and left the house. The male did not return any of the money to [the victim] later that day as arranged. [The Gardai, having viewed CCTV footage, identified the male as the appellant herein].”

Having pleaded guilty, the appellant was sentenced to two years’ imprisonment by the Circuit Court in February 2020. This sentence was made consecutive to an effective three-year sentence he had received 10 days earlier for other thefts committed after the present offence. The aggregate sentence therefore amounted to five years’ imprisonment. The appellant was 29 years of age when he committed the present offence and, at the time of sentence, had 61 previous convictions. He appealed against the two-year sentence principally on the grounds that it was excessive and that the trial judge had erred in ordering it to run consecutively to the effective three-year sentence imposed earlier. The Court of Appeal dismissed the appeal, holding that it was appropriate in the circumstances to impose a consecutive sentence, and that the trial judge had due regard to the mitigating factors present. If the sentence had been made wholly concurrent with the earlier sentence, it would have effectively resulted in the present offence being treated with impunity (although the Court did not use that term). The Court did stress as aggravating factors the planned nature of the offence, its impact on the victim who lived in an isolated area and the appellant’s criminal record which included some dishonesty offences.

There was, however, one question the Court might have addressed: is a two-year prison sentence ever a suitable penalty for the theft of 300 Euro?

The appellant’s conduct was, by any standards, despicable – the kind of conduct that leaves many people, especially the elderly and those living alone in isolated areas, in constant fear of being robbed or otherwise victimised. But, when it comes to sentencing, what weight should be accorded to the amount stolen? How the present case came before the Circuit Court is unclear, though the judgment records that the DPP had consented to summary disposal. The District Court may have decided that the case was not fit to be dealt with summarily. As already noted, if the appellant was being sentenced in the District Court, he would have faced a maximum of 12 months’ imprisonment and, since he was pleading guilty, the ultimate sentence would probably have been less than that.

When it comes to drawing up sentencing guidelines, some offences, notably those involving theft, fraud and drug dealing, are amenable to quantification in a way that others, such as assault offences, are not. Guideline creators may therefore be tempted to specify starting points or sentence ranges based solely or primarily on the value of the property misappropriated or the quantity of drugs, as the case may be. Such an approach, however, can scarcely yield an accurate reflection of the harm or culpability (or both) that may be involved. Suppose Offender A steals 50,000 Euro from a financial institution that has annual profits running to tens of millions of Euro, while Offender B steals 250 Euro from a pensioner who hasn’t another cent to her name. Which of these has committed the more serious offence, leaving aside offender-specific factors such as previous convictions or addiction status? Victim impact and the circumstances in which the offence was committed must surely weigh heavily when assessing the comparative gravity of offences such as these, despite the huge difference in the amounts stolen.

The English Sentencing Council tries to reconcile these considerations in its Definitive Guideline for Theft Offences. The offence categories are based primarily on the value of the stolen property, e.g. over £100,000 in category 1 and up to £500 in category 4. However, for each category there are three starting points and sentence ranges based on culpability. Factors indicating high, medium and lower culpability are listed at the beginning of the guideline. This approach is far preferable to one that treats the value of the stolen property as the sole determinant of sentence. Yet, value has to play some role, especially if a reasonable degree of ordinal proportionality is to be maintained. When reading O’Brien, one cannot but recall Hawkins [2014] IECCA 38 where the appellant was convicted following trial of stealing 2.8 million Euro over a few years from her employer, a member of the band U2. The Court of Criminal Appeal, in upholding that sentence, said that sentences close to the maximum would be suitable where a very large amount was stolen and the victim was left in serious financial distress as a result. Using a purely quantitative comparative analysis, a seven-year sentence for stealing 2.8 million Euro would mean, in effect, no imprisonment for stealing 300 Euro.

Victim impact and the circumstances in which the offence was committed are clearly important considerations, as the leading cases confirm. The big question is where a court should begin when constructing a proportionate sentence for theft. Should it start with the amount, which might suggest a very low sentence, and then increase that sentence to reflect the harm done (victim impact) and the offender’s culpability (e.g. taking advantage of a vulnerable person)? Or should harm and culpability be the primary determinants with a downward adjustment if only a small amount of money or property had been taken? I am inclined to favour the first of these approaches. The important consideration is that a court should consider harm and culpability as well as the amount. However, the amount provides a tangible baseline for identifying a headline sentence to which upward or downward adjustments can be made to reflect factors that increase or reduce the gravity of the offence. As always. the ultimate headline sentence may require further adjustment to reflect the offender’s response to the charges and his or her personal circumstances at the time of sentence.

Sentencing guidelines for theft would now be desirable in this country but because of the complex combination of factors and range of offending patterns that must be taken into account, such an exercise is probably better undertaken by a guideline-setting body such as the Judicial Council than by an appeal court. A significant amount of research would be required as as prelude to drawing up a guideline or, more likely, a set of guidelines.

A few other matters commonly arise in sentencing for theft, though not all them arose in O’Brien.

Previous convictions

This factor did arise in O’Brien. The appellant had 61 previous convictions at the time of sentence and some of those (we are not told how many) related to theft. If we assume that the theft of 300 Euro by a first-time offender would normally attract a non-custodial sentence, it follows that the entire two-year sentence was owing to aggravating factors, including previous convictions. The so-called recidivist premium is a troublesome issue, mainly because an offender is being further punished for offences for which he or she has already served sentences. (Michael Tonry comprehensively demolishes all the standard arguments in favour of recidivist premiums in Doing Justice, Preventing Crime (Oxford, 2020) 102-113). Granted, many jurisdictions around the world treat previous convictions as aggravating, and under some American guideline systems they can add enormously to the sentence to which a first-time offender would be liable. Yet, some have argued that previous convictions, in some instances at least, should be treated as a mitigating factor, the reasoning being that they may reflect a disadvantaged background, mental health problems, addiction or some other difficulty. Further, a criminal record, especially if accompanied by one or more spells in prison, seriously diminishes a person’s chances of gaining a stake in society and thereby having an incentive to lead a law-abiding life.

If previous convictions are to be treated as aggravating (and even if, as in Ireland, they must be relevant to the current offence before they can be so treated), two further principles should apply. First, the recidivist premium should be proportionate; the additional punishment should be no more than a fairly small percentage of what the headline sentence would otherwise be. Secondly, a court should specify how much weight it is attributing to this factor.

Desistance

Promoting desistance is clearly in the interest of both offenders and the broader community of which they are part. As numerous studies conducted over the past 20 years have shown, desistance is seldom “an event” in the sense that, one day, the offender decides “Enough, no more; ‘Tis not so sweet now as it was before” (that’s Shakespeare’s Twelfth Night, by the way). It is more often a slowing down process, with longer intervals between offences and perhaps involving progressively less serious conduct. In O’Brien, for example, we are told that although the appellant had 61 previous convictions, the last theft conviction prior to the commission of the present offence was in 2014. There was admittedly the complicating factor that he had earlier been sentenced for some theft offences committed after the current offence. However, there seems to have been a five-year gap in offending before he committed the current offence. The trial judge is recorded as saying that the appellant “would likely continue to engage in this type of behaviour until the penalties become too heavy or his time in prison burns him out.” This reflects a belief in deterrence that is not always justified, especially in case like this where the offender is said to have had mental health issues and a cocaine addiction. Yet, there was a five-year gap since the appellant’s last conviction for a theft offence which, in in turn, might suggest an effort at desistance. (It is not clear if he had been convicted of anything else during that period). In one of the seminal studies on desistance, Maruna concluded that long-term desistance requires “a fundamental and intentional shift in a person’s sense of self” (Shad Maruna, Making Good: How Ex-Convicts Reform and Rebuild their Lives (Washington, DC, 2001). 17). Internal resolve is certainly needed, but external support and encouragement is equally essential. It is a complex issue, but courts dealing with repeat offenders should always be alert for any signs of gradual resistance and be willing to take steps to encourage it further.

Imprisonment as a last resort

Despite the absence of any formal statutory provision to this effect for adult offenders, the principle that imprisonment should be the sanction of last resort seems inherent in the concept of proportionality. It is also sound policy because it saves offenders (and their families), whenever possible, from the many adverse effects of imprisonment. The big question, of course, is when the last resort is reached. The inherent gravity of an offence, even when committed by a first-time offender, may justify imprisonment. This would hold true of serious offences against the person. Persistent petty offenders pose a greater challenge. No one of their offences may justify imprisonment, so the question is whether their record should bring them over the custody threshold. A shoplifter, for example, may have dozens of previous convictions, all for the theft of low-value items. In 2008, the English Sentencing Advisory Panel conducted a survey of 1,500 shoplifters and found that they had on average 42 previous convictions each. A common response to this situation is to say that an offender who has persistently failed to respond to all the opportunities offered by non-custodial measures must now be imprisoned. In other words, the last resort has been reached, not because of the gravity of the current offence, but because of repeat offending of a minor nature. The flaw in this line of argument is that imprisonment almost certainly won’t work either. Any custodial term imposed must necessarily be short and, even then, only a small portion of it may be served if there is a shortage of prison accommodation. Re-offending rates are usually highest among those given short prison sentences. A recent English study shows that 66% of offenders sentenced to six months’ imprisonment or less re-offended within one year of release, with an average of 6.1 offences per recidivist. This compared with a re-offending rate of 30% by those who were given suspended sentences with requirements. See Melissa Hamilton, The Effectiveness of Sentencing Options (The Sentencing Academy, January 2021).

The main justification, though in reality a very weak one, offered for imprisoning repeat shoplifters and the like is that it offers some temporary respite to the community. One must set against this the very significant costs (human as well as economic) of operating a revolving-door system whereby a fairly large cohort of offenders are constantly being shunted in and out of prison. A useful start, in policy terms, would be take up Andrew Ashworth’s challenge that imprisonment should be abolished for property offences. He made clear, however, that he was referring to “pure” property offences and not, for example, to those involving personal violence or home invasion. (Ashworth, What if imprisonment were abolished for property offences? (London: Howard League for Penal Reform, 2013). Politicians and courts would probably be reluctant, to say the least, to adopt such a policy. But the suggestion should encourage us to imagine a world in which property offenders could not be imprisoned, and to consider the strategies we might then devise to incentivise desistance and thereby offer more protection to the community than our present policies can provide.

Prosecuting victims of human trafficking

During the last quarter of the twentieth century, retribution, or desert as we now prefer to call it, experienced a renaissance as the preferred moral justification for punishment, and it still commands considerable support among theorists. It is a deontological theory which claims that punishment is justified simply because it is deserved by the perpetrator of a criminal act, even if the infliction of a penalty confers no future benefit. Retributivists differ over certain aspects of their theory, with some, such as Michael Moore (in the past at least) claiming that the punishment of offenders is a categorical imperative “whenever the opportunity to give such punishment presents itself.” (Moore, “Justifying retributivism” (1993) 27 Israel L.R. 15). This “hard” approach would not necessarily commend itself to other desert theorists most of whom are probably content to accept that the state is entitled to inflict just punishment on retributive grounds, without being morally obliged to do so in every case. Nor is it reflected in the positive law which sometimes prohibits punishing the guilty or, in some instances, prosecuting persons who are strongly suspected of having committed offences, even serious ones.

Diplomatic immunity is a case in point. Under art. 31 of the Vienna Convention on Diplomatic Relations 1961, a “diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” The Convention has the force of law in Ireland under the Diplomatic Relations and Immunities Act 1967 (s. 5). Diplomatic immunity is now a contentious issue in England as a result of the Harry Dunn case. State laws may also strongly encourage, without strictly requiring, desistance from prosecution in favour of an alternative response such as diversion, particularly for children. More recently, a “no punishment” or “no prosecution” policy has emerged in relation to victims of human trafficking, and this was the subject of a significant judgment by the English Court of Appeal (Criminal Division) in R v A [2020] EWCA Crim. 1408.

In 2019, more than 100,000 victims of human trafficking were identified worldwide, and the real number of undoubtedly much higher. Human Trafficking is a multi-billion pound industry that, according to some estimates, has left as many as 45 million people in some form of human slavery worldwide today. The United Nations, the Council of Europe, the European Union and other global and regional organisations have adopted instruments designed to suppress and punish human trafficking. These include the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, part of the Palermo Convention Against Transnational Organised Crime (2000, ratified by Ireland in 2010); the Council of Europe Convention on Action against Trafficking in Human Beings (2005, also ratified by Ireland in 2010); and the EU Directive on Preventing and Combatting Trafficking in Human Beings and Protecting its Victims (2011/36/EU). The last two include what are commonly known as “no punishment” clauses. The Council of Europe Convention (art. 26) provides:

“Each state party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent to which they have been compelled to do so.”

The EU Directive (art. 8) provides:

“Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.”

Article 2 describes the activities that may constitute human trafficking. Neither provision is over prescriptive; what a state must do is “provide for the possibility” of not imposing penalties or “be entitled not to prosecute or impose penalties” on victims of trafficking for the relevant conduct. The Council of Europe Convention, on the face of it, is concerned only with not punishing trafficking victims whereas the EU directive refers to both punishment and prosecution. It is, of course, possible to prosecute and convict with punishing, but a conviction, and the criminal record it produces, may itself be a significant punishment for some.

Article 8 of the EU Directive must be read in conjunction with Para. 14 of the Recital:

“Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.

The general purpose of a recital in EU legislation is to state the reasons for the act but, while it may be called in aid for interpretive purposes, it cannot override an operative provision of the act. The range of criminal activities listed in Para 14 of this recital is clearly not intended to be exhaustive, and Art. 8 itself is quite open-ended in this respect.

R v A [2020] EWCA Crim 1408

A had earlier pleaded guilty to aggravated burglary and had been sentenced for that offence. He now brought an application claiming that his conviction was unsafe because the authorities had failed to have regard to his status as a victim of human trafficking. Both the Court of Appeal and the prosecution accepted that A had in all probability been a victim of trafficking while he was a child, but he was 18 years when committed the aggravated burglary. The legal significance of the case rests on the Court’s interpretation of the U.K.’s Modern Slavery Act 2015 and what it had to say about any residual powers vested in trial courts to stay a prosecution as an abuse of process. Section 45 of the 2015 Act, headed “Defence for slavery or trafficking victims who commit an offence”, is quite detailed but essentially it provides that a person is not guilty of an offence if he or she was compelled to do the relevant act and the compulsion was due to slavery or exploitation as defined. However, Schedule 4 contains a very long list of offences to which this defence does not apply. Included are all serious offences against the person, sexual offences, firearms offences and many others including aggravated burglary.

The Court of Appeal noted, rightly, that there is no blanket immunity from prosecution for victims of trafficking. The offence in this case was a serious one and committed with a high level of culpability. It followed that “a very high level of compulsion would be necessary to extinguish [the applicant’s] culpability or criminality or diminish it to a point where it would not have been in the public interest to proceed with the prosecution” (para. 68). The public interest, in fact, dictated the contrary in this case. The Court agreed with a previous decision in R v DS [2020] EWCA Crim. 285 that cases in which the 2015 Act applies should proceed on the basis that they will be stayed only if abuse of process in the conventional sense is found, namely, that a fair trial is not possible or that it would be wrong to try the defendant because there has been some misconduct by the state in bringing about the prosecution. Otherwise, the status of the defendant as a victim of trafficking is a matter for the jury. After all, what s. 45 of the 2015 Act says is that “is not guilty of an offence” if trafficked and so forth.

The situation in Ireland

Human trafficking is certainly an issue in Ireland. According to the Department of Justice and Equality’s Second National Action Plan to Prevent and Combat Human Trafficking in Ireland (2016), p. 18, a total of 417 alleged victims of human trafficking became known to the Gardai between 2009 and 2015. Of these 313 were female, 103 were male and one was transgender. 295 were adults and 122 were children. The largest group consisted of persons trafficked for sexual exploitation, followed by those trafficked for labour exploitation. They came from many parts of the world, but those from Western Africa formed the largest single group. Further information is provided by a UNODC research brief (https://www.unodc.org/documents/data-and-analysis/glotip/MSE_Research_Brief_Ireland.pdf), which is based on information provided by the Irish authorities. It shows that the number of presumed victims of trafficking who became known to the Gardai increased from 48 in 2012 to 95 in 2016. It refers to the discovery in 2016 of 23 Romanian men being exploited in a waste recycling plant.

Human trafficking and associated exploitation are outlawed by the Criminal Law (Human Trafficking) Act 2008 and the Criminal Law (Human Trafficking) (Amendment) Act 2013. The former, according to its long title, is intended to give effect in part to the UN Protocol and the Council of Europe Convention, while the latter is intended to give effect to certain provisions of the EU Directive. Neither has any provision (similar to s. 45 of the UK Modern Slavery Act) affording a general defence to trafficking victims accused of engaging in criminal activities. However, s. 5 of the 2008 Act, which deals with soliciting or importuning for the purpose of the prostitution of a trafficked person, provides (subs. 1):

“Where, for the purposes of the prostitution of a trafficked person, a person (other than that trafficked person) solicits or importunes another person, including that trafficked person, in any place, he or she shall be guilty of an offence.”

Section 5(2), dealing with the acceptance of a reward for prostitution, is phrased in similar terms. The prostitution of a trafficked person is therefore specifically outlawed, but with an exemption from liability for the trafficked person her/himself. In so far as immigration offences are concerned, the only statutory concessions I can identify (though I may be wrong) are in ss. 11 and 12 of the Immigration Act 2004, as amended, which impose a requirement to produce a passport or equivalent document in certain circumstances. It is a defence for the person to show that he or she had reasonable cause for not complying with that requirement. Being a victim of trafficking would, potentially at least, constitute such a cause.

What relief might be available to a victim of trafficking accused of engaging in some other criminal activity such as “minding” a cannabis factory (as discussed further below)? As the English Court of Appeal noted in R v A [2020] EWCA Crim. 1408, para. 14, prior to the enactment of the Modern Slavery Act 2015, the means available to give effect to international obligations regarding the non-prosecution/punishment of trafficking victims were predominantly: (1) Crown Prosecution Service guidance; (2) the common law defences of duress and necessity; (3) abuse of process jurisdiction.

To begin with the second of these, duress and necessity are available as general defences, apart altogether from human trafficking. Only very rarely does either defence succeed. Offhand, I cannot recall any Irish case in which necessity was successfully raised, although every lawyer and law student is well familiar with R v Dudley and Stephens (1884) 14 QBD 273. Duress is a more realistic possibility, though again far from easy to establish. The test is essentially objective, judged from the standpoint of a person of “reasonable firmness.” As the Supreme Court said in Gleeson [2019] 2 I.R. 196 at 215:

“[Duress] excuses conduct where unwished for constraint compels an accused of reasonable firmness, of the age, sex and other relevant fixed and permanent characteristics of the accused into criminal conduct. That coercion, on a reasonable view, should be so serious as to overcome the resistance of the person seeking to assert the defence…. The defence of duress only applies where that person has no available resort to any lawful alternative through any reasonable means….. If any reasonable opportunity exists for the person who claims to be under duress to take any lawful evasive action, particularly seeking the assistance of law enforcement authorities, it must be taken.”

Duress is not available as a defence to murder. The Supreme Court so held in Dunne [2017] 3 I.R. 1, though it is unfortunate that the Court did not at least consider some Canadian authorities to the contrary, notably Aravena 2015 ONCA 250 which has some very compelling reasoning. There still remains the possibility that duress, even as defined in Gleeson, might be available to a victim of human trafficking who was placed under severe compulsion to commit an offence. As the Ontario Court of Appeal said in the same Aravena (at para. 61): “Moral involuntariness as a principle of fundamental justice is a reflection of the central importance of individual autonomy and choice in the imposition of criminal liability.” This should obviously be a key consideration when assessing the liability of human trafficking victims accused of involvement in criminal activities in circumstances where they were acting under coercion or compulsion.

Prosecutorial discretion is probably the most effective bulwark against the unfair prosecution of victims of human trafficking and it is also probably the principal, if not the sole, means by which Ireland can claim to be in compliance with Art. 26 of the Council of Europe Convention and Art. 8 of the EU Directive, as quoted earlier. The DPP’s Guidelines for Prosecutors (5th ed., 2019) deals with the matter in the Chapter entitled “The Decision Whether to Prosecute”, where it says( at 4.7 and 4.8):

In assessing whether the public interest lies in commencing or continuing a prosecution, a prosecutor should exercise particular care where there is information to suggest that the suspect is a victim of crime. An example would be where it is suggested that the suspect is a victim of human trafficking. Such a person may be suspected of a range of offences from breaches of immigration law to offences related to prostitution. In a case in which there is credible information that a suspect is also a crime victim, the prosecutor should consider whether the public interest is served by a prosecution of the suspect.

“Factors which should be considered in assessing whether to commence or continue with such a prosecution include: (i) the nature of the offence allegedly committed by the suspect; (ii) whether there is any information that coercion or duress was exercised against the suspect in the context of the alleged offence; (iii) where there are allegations that the suspect was subjected to duress – whether it is alleged that this included violence or threats of violence or the use of force, deceit or fraud, or an abuse of authority or exploitation of a position of vulnerability; and (iv) whether the suspect has cooperated with the authorities in relation to any offences committed against the suspect.”

The Guidelines therefore permit non-prosecution of victims of human trafficking for activities in which they have been compelled to engage as a result of being trafficked. After all, what both the Council of Europe Convention and the EU Directive require is that national authorities should leave open the possibility of non-prosecution in these circumstances. The paragraphs just quoted from the Guidelines allow for just that. As the English Court of Appeal said of art. 26 of the European Convention in R v LM [2011] 1 Cr. App. R. 12: “Thus the convention obligation is that a prosecuting authority must apply its mind conscientiously to the question of public policy and reach an informed decision.” The importance of having such a provision cannot be overstated because it appears from a recent UN study that in some countries victims of human trafficking are being prosecuted and convicted, even where there is evidence of compulsion. See UNODC, Female Victims of Trafficking for Sexual Exploitation as Defendants (Vienna, December 2020).

Abuse of process, in a criminal context at least, is rather underdeveloped in Ireland, largely because pre-trial judicial review proceedings are more commonly used (though progressively less likely to succeed) when an accused person is seeking to restrain a trial for reasons such as delay or lost evidence. However, the possibility of a plea in bar or demurrer still undoubtedly exists and, indeed, is capable of development as illustrated by Casey [2019] IESC 7 where the Supreme Court held, for the first time, that officially induced error, as a legal objection to the continuation of a criminal proceeding, is available as a plea in demur. It is not beyond the bounds of possibility that the common law might be extended in a similar way to deal with a situation such as that in R v A [2020] EWCA Crim.1408 where a victim of human trafficking is claiming that he or she should not have been prosecuted. Ireland, after all, has no statutory equivalent of s. 45 of the UK Modern Slavery Act 2015.

Back to punishment

We must end where we began, with sentencing. Any claim that the infliction of punishment is morally obligatory becomes difficult to defend when one considers the strongly extenuating circumstances which led victims of human trafficking to become involved in criminal activity. Of course, a defendant who successfully raises a defence of duress or necessity will escape liability altogether. Otherwise, if a prosecution is initiated, allowed to continue and results in a conviction, the defendant’s status as a trafficking victim will probably be a mitigating factor at sentencing. In R v A [2020] EWCA Crim. 1408, the Court of Appeal, while dismissing the application, did expressly accept (para. 71) that the applicant’s personal circumstances, including his status as a victim of trafficking were “properly to be reflected by way of mitigation of sentence.”

The same undoubtedly holds true in Ireland, as reflected in some “cannabis factory” cases which seem to be the main context in which the matter has arisen here to date. The Court of Appeal has dealt with sentence appeals in many such cases which are comprehensively analysed by the Court (Edwards J.) in Samuilis [2018] IECA 316. Human trafficking has arisen in some of them, though most directly in Win Lin v Governor of Cloverhill Prison [2014] IEHC 214 which was actually an Article 40 (habeas corpus) case. The applicant sought release on the basis that he was a victim of human trafficking but the High Court decided, on the facts, that he was not. He later pleaded guilty to cannabis cultivation and was given an effective 27-month sentence backdated to the time of arrest. In Ba Nguyen and Ha Nguyen [2014] IECA 55, a husband and wife, natives of Vietnam (as many defendants in this type of case here and elsewhere appear to be), pleaded guilty to cannabis cultivation at a grow house in County Meath. Each received an effective sentence of four years’ imprisonment. The Court of Appeal reduced each sentence to three years and suspended the unserved balance, noting that the defendants (or the wife at least) had effectively been trafficked into the country. ,

The defendants in Nguyen were living in very poor, rudimentary conditions. They spoke little or no English and, by any reasonable interpretation of the facts, they were victims of serious exploitation. The same pattern emerges in other cases, even in the absence of any direct finding of trafficking. Courts are acting fully in accordance with principle when they treat as mitigating the circumstances in which such defendants came to be in the country, the exploitation they have experienced and the living conditions they have had to endure. Those factors can clearly reduce their culpability which is one of the key ingredients of offence gravity, harm being the other. They are therefore matters to be considered when the headline sentence is being set. As in Nguyen, other aspects of their circumstances, such as inability to speak English or being foreign nationals, which are likely to make the experience of imprisonment all the more difficult, may properly be taken into account under the second limb of the proportionality principle which is concerned with a defendant’s personal circumstances.

Ultimately, then, most of the cases of which we have had experience to date have called for less punishment rather than no punishment.

Sentencing guidelines and the need for empiricism

Many oldies like myself still remember from our schooldays the opening words of Caesar’s Gallic War: “Gallia est omnis divisa in tres partes” (Gaul, in its entirety, is divided into three parts). The same may now be said of most judicially-developed sentencing guidelines in this country. They typically consist of three sentence ranges, extending from zero to the maximum sentence for the offence in question. Where the statutory maximum is life imprisonment, a notional “effective” maximum of 15 years is sometimes adopted, thereby allowing for ranges of 0-5, 6-10 and 11-15 years, though always with the possibility of imposing a sentence up to the maximum in a particularly serious case. Exceptionally, in Mahon [2019] IESC 24; [2019] 2 I.L.R.M. 81, the Supreme Court identified four ranges for assault manslaughter, and this was fully justified because of the varying degrees of culpability with which that offence may be committed. English Sentencing Council guidelines also vary in this respect. with three sentence categories for many offences, but not for all (e.g. there are four for theft and seven for some fraud offences).

Given that sentencing guidelines are relatively new in Ireland, a tripartite division of this nature is a good start, and certainly an improvement on the unguided discretion that prevailed until recently. However, the bands in most cases remain fairly wide, typically five years. If the overall objective is to eliminate unwarranted disparity through a strict observance of proportionality, further guidance is needed as to the factors that should determine where within a given band or range a specific offence should be located. This was acknowledged by the Court of Appeal in Flynn [2020] IECA 294, an undue leniency application in respect of a sentence of four years’ imprisonment with the final 30 months suspended for an offence of dangerous driving causing serious bodily harm. This offence carries a maximum sentence of 10 years’ imprisonment, a fine not exceeding 20,000 Euro or both (Road Traffic (No.2) Act 2011, s. 4). The Court of Appeal noted that, by adopting the tripartite classification mentioned earlier, a sentence in the low range would extend from zero to 40 months; a sentence in the middle range from 41 to 80 months and a sentence in the high range from 81 to 120 months. The Court (Edwards J.) then said (para. 56):

“In the present case, it was not enough that the sentencing judge should have located his headline sentence in the mid-range. He needed to be more discriminating than that. In a three-way division of the ten-year spectrum, there is the potential within any of notional ranges for up to a 33 and one-third per cent differential between the low end of the range and the upper end of the range. The margin of discretion available to a sentencing judge in fixing a headline sentence would not extent to plus or minus 33 and one-third per cent. It would be significantly less than that, and accordingly it does not follow that simply by virtue of having selected the correct notional range a sentencing judge will be operating within his/her range of discretion. A greater level of discrimination is required.”

In this case, the Court held that the headline sentence of four years was too low, to the point of being wrong in principle and unduly lenient. It substituted a headline sentence of six years with a 50 per cent reduction for mitigating factors. It also imposed a 20,000 Euro fine (which, as a resentencing court, it was entitled to do), but ultimately decided to suspend the unserved balance of the substituted custodial sentence, so that the defendant who, apart from this offence, was of positive good character, could continue to rebuild his life.

The Court was obviously right to hold that a sentence may be wrong in principle even if located within the correct range. After all, if the appropriate headline sentence is 12 months’ imprisonment, a headline sentence of four years, though within the correct range, cannot be right. This raises the question of how more specific guidance might be devised to assist judges in identifying an appropriate headline sentence within a range. One solution would be to have more and narrower ranges with the possibility of moving between them if there are significant aggravating or mitigating factors. That kind of movement is already possible with our existing ranges, as recognised in leading guideline judgments such as Casey [2018] IECA 121; [2018] 2 I.R. 337.

Another possibility would be to specify within each existing range a starting point, meaning the sentence with which a court should begin and to which it could make upward or downward adjustments to reflect the presence of any factors that increase or reduce the seriousness of the offence, or that are otherwise relevant for sentencing purposes. This is the approach adopted in the English sentencing guidelines. In the case of aggravated burglary, for example, there are three sentence category ranges: (1-4 years with a starting point of 2 years; 4-9 years with a starting point of 6 years and 9 to 13 years with a starting point of 10 years). From this and many other English guidelines, it is noteworthy that the starting point is not always at the halfway mark within the range.

The starting point approach, with its list of guiding factors, certainly helps judges to select sentences that reflect the gravity of the offending conduct and the offender’s personal circumstances. Short of that, the next best strategy is simply to specify the factors that must be considered in deciding where within the range a specific offence should be located. This kind of guidance should be included in a “formal guideline” as discussed in the previous post. However, neither an appeal court nor a sentencing commission can offer such guidance without reliable information on existing sentencing practice and on the entire range of factors and circumstances that may properly influence the sentencing of particular offences and offenders.

As the Court of Appeal (Edwards J.) said in O’Sullivan [2020] IECA 331, para. 31:

“Broadly speaking such formal guidance as has been issued by the Irish appellate courts has tended not to be prescriptive or “top down” in its approach; but rather merely descriptive of patterns based on a synthesis of previous decisions, i.e. “bottom up” in its approach, suggesting indicative ranges for the purpose of assessment of gravity, and identifying potentially aggravating circumstances, or mitigating circumstances bearing on culpability, to be taken into account in determining the appropriate indicative range in which to locate a case.”

This is certainly true, and especially so of the Supreme Court’s judgments in Mahon [2019] IESC 24 and F.E. [2019] IESC 85; [2020] 1 I.L.R.M. 517 which are entirely descriptive. In fact, they are essentially categorisations of previous appellate decisions. We could have a long debate about the comparative merits of descriptive and normative sentencing guidelines, but we won’t have it here. Suffice it to say that descriptive guidelines, encapsulating existing practice and reflecting accumulated judicial wisdom, are more likely to be accepted and applied by trial courts. A normative approach has the advantage of permitting guideline creators to develop a more rational and coherent system than may be reflected in current practice. But, regardless of whether guidelines are intended to be descriptive, normative or, more realistically, some combination of the two, they must be based on comprehensive, reliable and transparent data. And that, unfortunately, is in rather short supply in this country at present.

The importance of data

When the Covid-19 pandemic first broke out, the message from the WHO was “test, test, test”. For any body, be it a court or a commission, drawing up sentencing guidelines, the motto must be “collect, collect, collect (data).” The value and credibility of any guideline, whether descriptive or normative, rests in large measure on the expert and dispassionate application of empirically derived data on existing practice and other relevant matters. Needless to say, judgment is always part of the equation as well. Professor Rachel Barkow, writing in an American context, refers to “the tension that arises from the fact that sentencing commissions must produce guidelines that are simultaneously reflective of the best empirical and expert knowledge about sentencing and acceptable to political overseers.” “(“Sentencing Guidelines at the Crossroads of Politics and Expertise” (2012) 160 Univ. Pennsylvania L.R. 1599). True enough, political realities can never be overlooked. The legislature, provided it is acting within the scope of its constitutional authority (which is very broad in this area) can overrule any guideline if it feels strongly enough about it. But guidelines are most likely to withstand scrutiny, and opposition, if they are clearly based on hard data that have been expertly collected and expertly analysed.

Criminal justice statistics: the need to disaggregate and coordinate

Right now, we rely primarily on data published by the Central Statistics Office and on the annual reports of the Courts Service, the Director of Public Prosecutions, the Irish Prison Service and the Probation Service for our criminal justice statistics. What I have to say here is not intended as a criticism of any one those reports in itself. Each agency has its own institutional functions and objectives, and these must naturally be reflected in its annual reports. The Probation Service report may be discounted for present purposes as it does not provide any useful or relevant offence-based data. The Prison Service Report is probably the most useful for sentencing purposes because it includes quite detailed statistics on the length of sentences being served for particular offences and categories of offences, as well as data on other matters such as the gender and age of serving prisoners. Of course, it deals solely with prison sentences. Offenders who received wholly suspended sentences, fines or community sanctions are not, for obvious reasons, included. From a sentencing perspective, the most relevant statistical table is that outlining the lengths of sentence being served for different offences, but many of the offence categories are very wide. The 2019 Report, for example, tells us that on 30 November 2019, there were 412 persons in custody under sentence for “homicide offences”, with 346 of these serving life sentences. This is reasonably helpful because we may assume that virtually all the life sentences were for murder, and the remainder for manslaughter. Attempted murders are included under another heading with assaults and related offences. The length of the sentences being served are also indicated in fairly broad bands. Thus, for homicide offences in 2019, there were 15 prisoners serving terms less than 5 years, 38 serving terms of 5 to 10 years and so forth. However, the next category is simply “sexual offences” for which there were 449 prisoners serving various terms on 30 November 2019. Clearly, one cannot draw any reliable conclusions from that because of the wide variety of offences and offenders involved. Under “controlled drug offences” the fifth largest category, there were 358 prisoners serving sentences ranging from less than 3 months (n=4) to 10 years or more (n=34). Again, we may assume that those serving the longest sentences were convicted of s. 15A or s. 15B drug dealing offences, but beyond that, few reliable conclusions can be drawn.

The Annual Report of the Courts Service has a statistical chapter, though its content and layout has varied over the years. The most recent report (2019) has reasonably detailed statistics for each criminal court, and these are of some value for research purposes. It describes “outcomes following conviction” in each trial court but only in terms of the kind of sentence imposed, and even then the offence categories are very broad, e.g. “drugs”, “sexual offence” and “larceny/fraud/robbery” (surely, 20 years after the Criminal Justice (Theft and Fraud Offences) Act 2001, we should forget about “larceny”). The sentencing statistics for the Central Criminal Court are somewhat more detailed, but this is to be expected since it effectively deals with murder and rape offences only. In respect of the other trial courts, the data relate solely to the kind of sentences (e.g. fine, community service, imprisonment) imposed for the various broad offence categories.

The Central Statistics Office is now responsible for the regular publication of recorded crime figures although it is careful to state that it is “wholly dependent on the provision of PULSE data by an Garda Siochana.” Recorded offences are divided into 15 broad categories such as “sexual offences”, “robbery, extortion and hijacking” and “fraud, deception and related offences.” However, in a sentencing context, the CSO has produced useful reports on Prison Reoffending Statistics and Probation Reoffending Statistics.

The DPP’s Annual Report has detailed information on the number of prosecutions, the outcomes of cases in which prosecutions were taken and so forth, but no information on sentencing (nor is this to be expected in that report). It does include some general information on the number of undue leniency applications and their outcome without specifying the offences in respect of which they were taken or the sentence levels involved.

One other report that might be mentioned in this regard is the Annual Report of the Oberstown Children Detention Campus. Unfortunately, this is very deficient in terms of statistical information (apart from what is given at p. 8 of the 2019 Report). Admittedly, the number of children in detention at any given time is quite small (44 on detention orders and 31 on remand orders in Quarter 1 of 2019), but the number of detention orders made by the District Court is considerably higher than that. It would be helpful to have more information about the offences for which children are detained and the length of the detention orders.

There are, of course, serious difficulties in presenting statistics that truly reflect the recorded incidence of a given offence or, for that matter, the number of prosecutions or sentences imposed for a given offence. This is partly because of multiple offending. A high percentage of defendants appearing before the criminal courts are charged with several offences, and they may be convicted of some or all of them. To complicate matters further, when it comes to sentencing, certain offences may be “taken into consideration” rather being sentenced separately (though in this connection, courts should pay heed to what was said by the Court of Appeal in Casey [2018] IECA 121, paras 13 -15). A survey of the 50 most recent judgments of the Court of Appeal in appeals against conviction or sentence (as they appear on the Courts Service website) shows that in only 14 (28%) of them was the defendant convicted, by plea or otherwise, of one offence. The defendants in 20 (40%) of the cases were convicted of 5 or more offences, including one (predictably involving child sexual abuse) where the defendant was convicted of 105 offences. Reflecting sentences such as these in prison statistics is obviously difficult; the heaviest sentence is presumably the one counted for statistical purposes.

We need to undertake a general review of the collection, presentation and publication of criminal statistics in Ireland. Here, I am looking at the matter solely through the lens of sentencing, but it goes without saying that detailed, reliable and coordinated statistics are equally important for well-informed policy making in other areas such as policing, crime prevention, offender management, desistance programmes and court administration. An attempt should be made to disaggregate the statistics to the greatest extent possible so as to present a clearer picture of the sentences imposed or being served for particular offences, rather than for broad categories such as “sexual offences” or “dangerous or negligent acts” (one of the categories in the Prison Service Report). Further, a greater effort might be made to coordinate the statistics produced by each agency if only to the extent of ensuring that they all use the same offence categories. Ideally, there should be such a degree of coordination as would permit “follow through” from the number of reported offences to the outcomes in terms of sentence (for those cases that got that far).

It’s not just about numbers

Empirical research is also needed for the more “narrative “aspects of sentencing guidelines, meaning the range of circumstances in which a given offence may be committed, the factors that may aggravate and mitigate and the offender-related circumstances that are most likely to arise. As noted in the previous post, the facts of a case under appeal, even when combined with whatever “comparator” cases are offered to the court, may be inadequate for this purpose. This qualitative dimension is just as important as the quantitative. Here again, research already carried out, guidelines drawn up or guideline judgments delivered in other jurisdictions with a body of criminal law and a set of general sentencing principles similar to our own can be very helpful in identifying the relevant information.

One final and important point to note is that, in many cases, the most difficult challenge faced by trial courts and appeal courts is not identifying the range to which a specific offence should be allocated (a matter on which there is probably a fair degree of consensus), but rather how to sentence multiple offenders. Even from the very limited survey of 50 recent Court of Appeal judgments mentioned earlier in this post, it is apparent that a significant majority of offenders will have been convicted of several offences. Further, as reflected in that same survey, multiple offending may take several forms. One of the cases did involve several distinct offences of robbery and burglary. However, another involved what might be called “endangerment by driving” where several offences were committed during the one transgressive episode. Yet another involved more than 100 sexual offences committed over several years against the same victim, and then there was a case of social welfare fraud where the offender pleaded guilty on a full facts basis to 20 sample charges of theft and deception out of more than 100 originally charged.

The real challenge, therefore, is very often one of aggregation rather than selection. Selecting sentence for a single offence may not be too difficult, especially if there is a guideline of some description. Deciding how to aggregate sentences in order to reflect the totality of the offending is a more difficult matter, and the general principles governing the use of consecutive and concurrent sentences are seldom helpful. One of the paradoxes of sentencing guidelines, whatever form they take, is that they almost invariably concentrate on the sentencing of individual offences, when it is the sentencing of individual offenders, with their varied and sometimes complex patterns of offending, that courts find most the challenging and on which they have the least guidance. But here too empirical research can help, most notably by the creation of a sentencing information system that allows judges, lawyers and other users to see how cases with similar fact patterns were sentenced in the past. This is what the Irish Sentencing Information System, modelled largely on a similar Scottish system, tried to do while it lasted. Information systems of this kind are, of course, purely descriptive but they provide an indispensable foundation for the development of more normative principles if that is what is desired.