Developments in Irish Sentencing Law

• Author: Lisa Scott
• Position: BA, LL.B, LL.M
• Pages: 1-14

IRISH JUDICIAL STUDIES JOURNAL

[2017] Irish Judicial Studies Journal Vol 1 1

DEVELOPMENTS IN IRISH SENTENCING

Lisa Scott, BA (NUI), LLB (NUI), LLM (Leiden)

Introduction

On the 18th March, 2014, the Court of Criminal Appeal (CCA) gave judgment in three

sentencing appeals. In these “interconnected”

1

judgments (delivered by Clarke J.), the CCA

recommended a new approach to sentencing with the aim of achieving a greater level of

consistency, while also giving proper weight to the particular circumstances of the accused and

the facts of the particular case.

2

The Court detailed the role and responsibilities of counsel for

the prosecution at the sentencing stage of a criminal trial, and the process by which the

sentencing judge should arrive at a sentence. In particular, in The People (D.P.P.) v. Z the Court

addressed the question of the assistance which a sentencing judge was entitled to receive from

counsel for the prosecution at the sentencing stage of a criminal trial.

In a supplemental judgment in The People (D.P.P.) v. Fitzgibbon delivered on 17th July, 2014,

the CCA acceded to the request of the Director of Public Prosecutions that the Court would,

in the context of its judgment, define the precise parameters of the obligation on counsel for

the prosecution to assist at a sentencing hearing.

3

Further clarification has since been provided

by the newly constituted Court of Appeal (Finlay Geoghegan J.) in The People (D.P.P.) v.

Hussain.

4

In light of these judgments, it is necessary to reflect firstly on the development of sentencing

principles in Ireland and secondly to examine the most important aspects of the final

pronouncements of the CCA in relation to sentencing.

Development of Sentencing Practices in Ireland

The People (D.P.P.) v. Tiernan

In The People (D.P.P.) v. Ryan, the CCA (Clarke J.) addressed the judgment of Supreme Court in

The People (D.P.P.) v. Tiernan,

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which had at one time been understood to prohibit Irish judges

from establishing sentencing guidelines in the course of giving judgment. The applicant in

Tiernan had been sentenced to 21 years penal servitude for his participation in a gang rape.

The sentence was upheld by the CCA. The case was subsequently referred to the Supreme

Court under section 29 of the Courts of Justice Act 1924, the Attorney General having

certified that the case involved a point of law of exceptional public importance. It has been

acknowledged that the Supreme Court was being asked to consider writing a “guideline

judgment” which would offer guidance to the judiciary when sentencing for rape.

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This style of

1

The People (D.P.P.) v. Fitzgibbon [2014] 2 I.L.R.M. 116.

2

The People (D.P.P.) v. Z [2014] 1 I.R. 613; The People (D.P.P.) v. Ryan [2014] 2 I.L.R.M. 98; The People

(D.P.P.) v. Fitzgibbon [2014] 2 I.L.R.M. 116.

3

The People (D.P.P.) v. Fitzgibbon (No.2) [2014] 1 I.R. 627.

4

D.P.P. v. Hussain [2015] IECA 22 (Unreported, Court of Appeal, 16th Feb ruary, 2015).

5

The People (D.P.P.) v. Tiernan [1988] I.R. 250.

6

O’Malley, Sentencing Law and Practice (Dublin: 2006), at 1.23.