Irish Penal Reform Trust

Submission to National Crime Council on Alternatives to Custody

Presented to the Council on Monday, 13th September 2004

Claire Hamilton and Patricia Brazil[1]

Executive Summary

(i)Introduction

The Trust was invited to make submissions on the use of imprisonment and the importance of finding alternative ways of dealing with offending in the community. The following were identified as issues of particular interest to the Council:

  • the use/appropriateness of the range of non-custodial sentences/sanctions available to the courts;
  • restorative justice;
  • the implementation of the Children Act 2001;
  • other initiatives aimed at assisting “at risk” young persons.

(ii)Summary

Part 1:The use/appropriateness of the range of non-custodial sentences/sanctions available to the courts

The IPRT drew attention to the high rate of imprisonment in Ireland per 100,000 of the population, in particular the overuse of short sentences of imprisonment. This would indicate that Ireland is a country with great potential for the use of non-custodial sanctions as a means of reducing the prison population. In this regard, the Trust made the following observations:

  • The reform of the Probation of Offenders Act 1907 to provide a more modernised framework for the operation of the probation scheme is long overdue. More resources and personnel are currently required for the Probation and Welfare Service to perform its functions effectively. An expanded probation scheme with an increased emphasis on community sanctions, would require further resourcing of the Service.
  • The IPRT would sound a note of caution in relation to the introduction of new non-custodial sanctions in relation to the phenomenon of “up-tariffing”. The significance of this development is that it increases the risk of receiving a custodial sentence in the event of non-compliance with a court order and is to be guarded against. This is an area which would benefit greatly from research into sentencing practices. The IPRT would reject the proposal made by the Expert Group on the Probation Service (1999) that community service be available as a sanction in its own right, on the grounds that such proposal would have an inevitable impact of “down grading” the status of the CSO as a non-custodial sanction.
  • The IPRT suggests that the practice of disposing of casesby way of donations to the court poor box should be placed on a statutory basis, in order to address the current inconsistency which prevails in relation to this sentencing option.
  • The IPRT suggests consideration be given to widening the scheme of compensation orders in this jurisdiction, in order to allow the full utilisation of the order as a non-custodial sanction, particularly in the light of the recent politically-driven aggressive policy on the prosecution of public order offences.
  • The absence of an effective evaluation of the existing pilot presents a serious obstacle to the availability of drugs court on a national basis. Research should be conducted into other non-custodial options for drug users, including new alternatives to divest drug users away from the criminal justice system towards appropriate health services and whether the aims of the Irish Drug Court could be better achieved by the roll out of a DTTO available in each District Court.
  • The Trust strongly believes that a sentence of imprisonment imposed for default on payment of a fine represents a contradiction in terms and a waste of valuable resources. The IPRT joins its voice to previous calls to bring to an end the practice of imprisoning fine-defaulters.
  • The IPRT believes that credible research-based evidence must be provided by the Government on the effectiveness of electronic monitoring in reducing costs, prisoner populations and recidivism rates before this expensive sanction is introduced in this jurisdiction.
  • Generally, the Trust is of the view that effective reform in this area cannot take place in the absence of research into sentencing practices in this jurisdiction. Second, perceptions of inconsistency in District Court sentencing,[2] cannot be eradicated without practical, enforceable guidelines on the application of non-custodial sanctions.

Part 2:Restorative Justice

  • Restorative justice is a valuable alternative to custody which receives the strong support of the Trust. Restorative justice offers many advantages over the traditional criminal justice system, for example, it is less costly and more inclusive than the traditional process.
  • The IPRT welcomes the movement towards a restorative justice philosophy in the Children Act 2001 and is particularly encouraged by early findings from the restorative justice pilot programme. We express particular concern, however, about the resource problems highlighted within the pilot evaluation and call for proper resources to be available to facilitate the holding of both Garda conferences and family conferences convened by the Probation Service.
  • The IPRT also welcomes the restorative pilot projects currently being undertaken in Tallaght and Nenagh, Tipperary. Much will depend on the results of further evaluations of these projects, however, the IPRT considers that it is timely for further consideration to be given to the inclusion of victim-offender mediation and other restorative techniques within the criminal justice system.

Part 3:The Implementation of the Children Act 2001

In relation to the 2001 Act, the IPRT calls for:

  • the immediate making of regulations under s. 23(K)(6) in relation to the operation of special care units;
  • in the light of its success, more resources for the Garda Diversion Programme so that this scheme can be made available to all children throughout the country;
  • a built-in advocacy system for young people who express reluctance about availing of the programme which would allow them to get specialist advice as to the best course of action;
  • the rejection of the proposal in the Criminal Justice Bill which would oblige Gardai to share information with the court;
  • the immediate implementation of Part 5 of the Act which raises the age of criminal responsibility to 14;
  • the training of members in charge dealing with child suspects under the 2001 Act and for those members of the Garda Siochana who engage in questioning child suspects;

research to be conducted into the detention of YP young people in Garda stations similar to that recently commissioned by the Northern Ireland Office;

  • the assignment of a specialised children court judge on a de facto basis. In the alternative, specialised multi-disciplinary training should to be provided to every judge likely to sit in the children court, including detailed training about how to implement the duty in s 96 to listen to children in court.
  • the decentralisation of the Children’s Court in Smithfield;
  • the immediate commencement of the provisions contained within Part 9 of the Act on community sanctions and the allocation of adequate resources to the Probation and Welfare Service to facilitate the implementation of these sections;
  • in general, the expeditious commencement of the Act in its entirety and full resourcing of all its provisions;
  • the establishment ofa co-ordinating body – like a juvenile justice agency – that will oversee the entire system including the implementation of the Act.

Part 4:Initiatives aimed at assisting “at risk” young persons

  • The complex interplay of factors which lead young people to offend serves to illustrate the need for an inter-agency approach when dealing with young people at risk. This would be assisted by the placing of certain pilot schemes on a permanent basis and the adoption of a long-term strategy in this area.
  • The Trust considers early family-based intervention is crucial. In this regard, a useful intervention model is provided by the Springboard Pilot Projects.
  • The IPRT believes that initiatives such as Copping On which focus on cognitive behavioural training, are to be encouraged and would call for further research into this area.
  • While duplication of the conferencing work of the JLOs and Probation and Welfare Services under the Children Act is obviously undesirable, the Council should give consideration to the Youth Offenders Team (YOT) model, which has been developed in the UK, and which adopts a holistic, multi-agency approach.

Part IThe use/appropriateness of the range of non-custodial sentences/sanctions available to the courts

AContext – Over use of imprisonment in Ireland

Most commentators agree that there is an overuse in imprisonment in Ireland, particularly in respect of short term sentences. Concerns have been raised that the rate of imprisonment per 100,000 is excessive when compared with other European countries, particularly in the context of the falling crime rate in this jurisdiction. By way of example, the most recent figures for rates of imprisonment per 100,000 for 2003[3] are as follows:

  • Norway:64 per 100,000
  • Northern Ireland: 71 per 100,000
  • Ireland:90 per 100,000
  • England & Wales:142 per 100,000

The criminogenic effect of prison has been well documented by O’Mahony[4] amongst others. Further concerns in the context of Irish penal policy are the high rates of short sentences of imprisonment, confirmed recently by statistics from the Prison Service in its Annual Report 2002, which showed that just under 40% of offenders sentenced to prison in 2002 had been given terms of 3 months or less. This apparent over-use of short sentences would suggest that Ireland is a jurisdiction with great potential for the use of non-custodial sanctions as a means of reducing the prison population. The IPRT also notes the recent report of the Comptroller and Auditor General on the Probation and Welfare Service[5] which commented on the under-use of non-custodial sanctions, implicitly recognising that this situation is attributable to encouragement of “populist punitiveness” for political purposes. The CAG noted that “the value and importance of alternatives have tended to be undervalued and underplayed during the years” and called for a greater use of non-custodial sanctions as a preferable means of dealing with lower-scale offenders and also as a means of reducing the current high spending on prisons in Ireland.

BFinal Report of the Expert Group on the Probation and Welfare Service

The current scheme of alternatives to imprisonment in Ireland was subjected to detailed scrutiny in the Final Report of the Expert Group on the Probation and Welfare Service[6]. The Report considered the current scheme of alternatives to custody available in this jurisdiction, and made various recommendations for reform.

The Report of the Expert Group on the Probation and Welfare Service contains many useful and positive suggestions, and the IPRT would agree that the time is ripe for reform of the Probation of Offenders Act 1907 to provide a more modernised framework for the operation of the probation scheme in general, and probation orders in particular, in this jurisdiction. The IPRT strongly agrees with the conclusion of the Final Report that the Probation & Welfare Service is in need of restructuring, and adds its voice to the call for a firm commitment to meeting the resource demands of the Probation & Welfare Service in order that it may fully discharge its duties.

C“The Problem of Proliferation and the Phenomenon of Up-tariffing”

The IPRT notes that the Expert Group also recommended that reform of the 1907 Act should extend to the inclusion of a number of new non-custodial sanctions, namely treatment orders, mediation orders, reparation orders, and counselling orders should be available pursuant to a modernised Probation Act. It is beyond doubt that the Probation Act is badly in need of modernisation, and indeed in practice many of the proposed new orders are already made pursuant to the 1907 Act, as a result of the large judicial discretion in relation to the terms of recognisances. However, without in any way disparaging these proposals, the IPRT would sound a note of caution in relation to the introduction of new non-custodial sanctions.

It is tempting to conclude that a relatively straightforward way to address the burgeoning prison population is to increase the number of non-custodial sanctions available to sentencing judges. However, international experience would suggest that increasing the range of non-custodial sanctions can have quite a different effect on the prison population to that envisaged. Ashworth[7] gives a good account of the “proliferation” of alternatives to custody in England in the latter half of the 20th century, noting that:

“the courts in England and Wales have available a wider range of non-custodial measures than the courts in most European countries, most states in America and probably most countries in the world. [However] what might be described as the policy of proliferation was not a conspicuous success. Simply widening the range of available non-custodial sentences did little to deflect courts from their use of custodial sentences”.

The reason for the failure of an expanded list of non-custodial sanctions to reduce the prison population is attributable to the process known as “up-tariffing”. Thus, the proliferation of non-custodial alternatives did bring about changes in sentencing practices in England, but such changes did not impinge significantly on the use of custody: eg CSOs were fairly widely used, but this was in the context of a decline in the number of fines. Thus, the process of up-tariffing operates to push offenders up one step of the sentencing ladder: there is a danger that rather than replacing a custodial sentence, new non-custodial sanctions may simply replace another (often lesser) non-custodial sanction. O’Mahony[8] has expressed concern in relation to the phenomenon, noting that non-compliance with non-custodial sentences is punishable by imprisonment. Thus, persons who might otherwise have been discharged with probation with little subsequent danger of imprisonment, may – by reason of the process of up-tariffing – be given a non-custodial sanction “one step up the ladder”, and subsequently be exposed to the risk of receiving a custodial sentence in the event of non-compliance, defeating entirely the point of such non-custodial measures in the first place. Such experiences emphasise the need for caution so that a new alternative to custody does not simply replace another alternative to custody.

The phenomenon of up-tariffing is of particular concern to the Trust. It was the reason for the IPRT’s guarded response to the proposed introduction of electronic tagging in Ireland[9], which will be further considered below. There is already in Ireland an implicit legislative acknowledgement of the danger of up-tariffing, in the requirement that prior to imposing a community sentence order, a judge must be satisfied that the offence is one which would warrant a custodial sentence.[10] In its review of the operation of the Community Service Order (CSO) scheme, the Expert Group on the Probation and Welfare Service noted that some judges and other commentators had complained that this requirement rendered the CSO scheme inflexible and unnecessarily fettered the court’s discretion in relation to imposing CSOs. The Final Report of the Expert Group on the Probation & Welfare Service thus recommended that this condition be removed from the legislation (whilst accepting that the CSO should be considered to be “at the higher end of the hierarchy of non-custodial sanctions and accordingly should be utilised with discretion”).

The IPRT would reject the proposal that community service be available as a sanction in its own right, on the grounds that such proposal would have an inevitable impact of “down grading” the status of the CSO as a non-custodial sanction. In terms of the proliferation of non-custodial alternatives, the IPRT again raises concerns that this might unintentionally lead to a process of up-tariffing and a further increase in an already unacceptably high prison population. Accordingly, the Trust recommends that this is an area which would benefit greatly from research into sentencing practices.

DCreation of a Statutorily defined Hierarchy of Sentences

The National Crime Council in its deliberations might consider the potential utility of the structure of the Criminal Justice Act 1991 in England, which consolidated the various sentencing powers available to judges. The CJA 1991 created a hierarchy of sentences: absolute and conditional discharges at the lowest level, fines on the next level, CSOs above them, and custodial sentences at the top. In order to provide guidance to sentencing judges on the operation of the hierarchy, the Act introduced the concept of the “custody threshold”, providing that “the court must not pass a custodial sentences unless it is of the opinion that the offence … was so serious that neither a fine alone or a community sentence can be justified for the offence”. It further provided that “[a] custodial sentence must be for the shortest term … that in the opinion of the court is commensurate with the seriousness of the offence”. It must be acknowledged that the 1991 Act was not an unqualified success – the abolition of unit fines only two years after their introduction by the 1991 Act, whilst widely regarded an unreasonable and politically motivated response to teething problems in the unit fine scheme, nevertheless was taken as evidence of the weakness of the statutory scheme as a whole. The IPRT does not necessarily call for the consolidation of sentencing powers in this jurisdiction, but simply notes that this was one option which has been used in an attempt to clarify the operation of schemes of non-custodial sanctions, which might provide useful guidance on the interaction between the various sanctions.