Judge John Edwards

A reform due to be passed in the Dáil this week would see judges forced to have regard to new sentencing guidelines.

In recent years, the outcomes of a number of rape and sexual assault cases have resulted in rape victim support groups criticising the judiciary over concerns that some sentences were excessively lenient.

But in a paper published this month, Judge John Edwards warned that any sentencing council created by statute to produce presumptive determinate sentences would “impinge significantly on judicial discretion”.

Judge Edwards said a council that was “unduly preoccupied with generating consistency at the expense of more individualised sentencing could be constitutionally problematic”.

He acknowledged that the current regime left the judiciary “exposed to the populist charge that they are a law unto themselves”, but said it was “simply not the case” that judges could do as they pleased because appeal courts provided guidance through case law.

He said, however, that judges had to better explain the reasons for their sentences and that a lack of transparency increased the risk “in today’s culture of an ill-considered and rushed statutory intervention in response to populist pressure inspired by public outrage at the perceived inappropriateness of some sentence”.

Under the proposed law, judges will be obliged to consider the guidelines on sentences for crimes set out by the new Sentencing Guidelines and Information Committee. The committee will include a majority of judges but will also have lay members.

Judges who depart from guidelines will be required to explain why they are doing so.

Donnchadh Ó Laoghaire, Sinn Fein’s justice spokesman, said he was confident the law would deal with “rogue” lenient sentences meted out in rape and sexual assault cases.

“I believe this is a huge step forward,” he said.

“The vast majority of judges do their jobs well but there have been instances of sentences handed down that have just been impossible to get your head around. Sometimes there are wide disparities in sentences handed down in district courts, but sometimes it’s in serious cases such as sexual offences, which call into question whether the judge has adequately recognised the violence involved.

“I do believe it will force judges to generally abide by the guidelines and they will have to outline why they would make exceptions to that.”