Dr Eoin Guilfoyle

In comparison to other common law jurisdictions, Ireland has a relatively unstructured sentencing system. Judges in Ireland have a high degree of discretion when it comes to sentencing. There are positives and negatives to this type of system. On the positive side, it allows judges to deal with each case on an individual basis and to impose a sentence that they believe to be fair and just based on the circumstances of each case. On the negative side, it can lead to different sentences being imposed for similar offences.

For some time now, academic (Hamilton, 2005; Maguire, 2010; O’Hara, 2016) and journalistic research (RTÉ, 2004; Irish Times, 2018) has highlighted inconsistencies within Ireland’s sentencing system. In an effort to address this, politicians from across the political spectrum have called for sentencing guidelines to be introduced. While the Government were originally against the idea, following discussions with opposition parties, they have now brought forward amendments to the Judicial Council Bill which provide for the creation of sentencing guidelines.

This blog will not debate the merits of introducing sentencing guidelines in Ireland. Instead, it will focus on a significant obstacle to their introduction and the potential negative consequences of attempting to introduce sentencing guidelines without first properly addressing it. The obstacle that I am referring to is the lack of sentencing information that is currently collated in Ireland.

Lack of sentencing information

There is a severe dearth of sentencing information in Ireland. The only data currently available comes from the Irish Sentencing Information System. This committee was set up in 2007 by the then Chief Justice, the Hon Ms Justice Susan Denham. It undertook an initial data collection phase between 2007 and 2009 and a second phase in 2013. Researchers attended courts in selected areas and recorded information on sentences being imposed in those courts. The information was then anonymised and published on the committee’s website.

While it did provide some valuable insights into sentencing in Ireland, the information produced is a long way off what is required to provide for a comprehensive understanding of how judges are currently sentencing offenders for particular offences. Aside from the data being out of date, the sample size is small and it is not representative of the whole country. What’s more is that the infrastructure needed to produce sufficiently high-quality sentencing information is also absent. The methodology used by the Irish Sentencing Information System would not be an efficient or effective way of producing ongoing nationally representative sentencing information. Entirely new IT systems and data collection methods would most likely be needed.

The importance of sentencing information

Sentencing information is vital to the creation of sentencing guidelines. The first step to creating sentencing guidelines is to understand current sentencing practices and trends. This cannot be done in Ireland at present and it will likely require significant investment in order to get to a point where Ireland can even begin to collect the sentencing data that is needed. Skipping over this step and introducing sentencing guidelines without an understanding of how offences are currently being sentenced would massively jeopardise the quality and integrity of the guidelines.

Sentencing information is also vital in order to maintain sentencing guidelines. Once a guideline has been introduced, it needs to be monitored to understand its impact and to ensure that if any issues arise, they can be identified and addressed immediately. One such potential issue is sentencing inflation. This is something that has been experienced in England and Wales for some offences (Sentencing Council, 2015) and it is possible that this would also occur in Ireland. It would be a damaging and regressive step if sentencing guidelines were to end up causing sentences to increase and the prison population to expand. Therefore, it is of the utmost importance that Ireland has the infrastructure needed to collect and analyse the data that is required to monitor this, as well as other issues, prior to the introduction of any sentencing guideline.

Ongoing resources

In addition to putting the necessary infrastructure in place to allow for sentencing data to be collected, the body responsible for collecting and analysing the data must be properly funded. The Government, in its original impact analysis of the Judicial Council Bill, suggested that the ‘Sentencing Information Committee’ would have an annual budget of €200,000 (Dept. of Justice and Equality, 2017). The recent amendments to the Bill propose giving this committee the responsibility of drafting and monitoring sentencing guidelines.

It is important that if the Sentencing Information Committee is given extra functions that it is also given extra resources to allow it to perform those functions. By way of comparison, the Sentencing Council in England and Wales has a budget of over €2 million (Sentencing Council, 2018) and in a recent review it was noted that their research teams are stretched (Ministry of Justice, 2018). The Scottish Sentencing Council has a budget of over €600,000 and receives additional support from the Scottish Courts and Tribunals Service (Scottish Sentencing Council, 2018). It was created in 2016 and to date has one fully completed and approved sentencing guideline.

Conclusion

There would appear to be widespread support amongst parliamentarians for the introduction of sentencing guidelines in Ireland. In their desire to introduce sentencing guidelines, it is important that the current lack of sentencing information is not ignored or quickly glossed over. There must not be a rush to introduce sentencing guidelines without first addressing this vital issue.

The development of the necessary IT infrastructure, the development of systems for collecting and analysing sentencing information and the development of procedures for creating sentencing guidelines, are crucial steps in introducing sentencing guidelines. There are many potential complications to successfully completing these steps and they need to be given sufficient time and attention, and if necessary, funding, in order to get them right from the outset.

Sentencing guidelines can improve Ireland’s sentencing system but they can also damage it. One sure way of making the situation worse is to create a system where sentencing guidelines are drafted and monitored by a Committee that is underfunded, has unrealistic targets and is constrained in its abilities due to limited and substandard sentencing information.

• Dr Eoin Guilfoyle is a teaching associate in law at University of Bristol Law School.