Public Protection and Sentencing Offenders Proportionately: Should there be a Premium on Dangerousness?

• Author: Simon Cawte
• Pages: 119-139

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PUBLIC PROTECTION AND SENTENCING OFFENDERS

PROPORTIONATELY: SHOULD THERE BE A PREMIUM ON

DANGEROUSNESS?

Simon Cawte*

A INTRODUCTION

Winston Churchill advised that ‘one ought never to turn ones back on a threatened

danger. If you do that, you will double the danger. But if you meet it promptly and

without flinching, you will reduce the danger by half’.

The topic of threatened danger in sentencing presents a contemporary challenge in

public law. The issues centre around conflicting aims of punishment and interpreting

whether proportionality acts a constraint in sentencing an offender deemed to be

dangerous. It is necessary to survey the field of proportionality to identify critically

the possible conditions for imposing indefinite or extended imprisonment for

offenders who are predicted to represent a danger to the public.

Existing literature in this field emphasises the fact that experts disagree over the use

of dangerousness as a principle for imposing longer sentences to protect the public.

Opposition emanates from factors such as compliance with fairness, inaccurate

predictions of danger and compatibility with human rights. Extended sentences for

dangerousness via preventative detention such as incapacitation find support on

practical grounds such as the protection of the public. In this context the article

examines the different approaches to sentencing and how dangerousness is dealt with

in current practice. The article will explore instances were dangerousness may be

deployed by the courts in imposing a premium on a sentence and how human rights

concerns arise with such a punishment.

I do not purport to endorse either a retributivist or utilitarian approach but instead

analyse factors in both philosophies that may in limited circumstances lead to longer

sentences in extraordinary cases. The dispute between the two approaches is revealed

by reference to the dangerous offender. As prevention of future crimes purports to be

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a function of imprisonment,1 the scope of this enquiry will not be a straightforward

comparative exercise but there will be references to sentencing systems

internationally, while accounting for the fact that the Irish Constitution protects an

array of personal rights.

Ultimately, it will be submitted that dangerousness should be considered in extending

sentences but only in the most individual and exceptional circumstances with the aim

that this may be achieved via the introduction of sentencing guidelines.

B PROPORTIONALITY (IRISH POSITION)

The Irish courts regard proportionality as the most fundamental principle of

sentencing.2 Furthermore, the court in People (DPP) v WC 3 (WC) declared that a

punishment to be imposed on an offender is subject to the constitutional requirement

of proportionality. This was confirmed by the Supreme Court in People (DPP) v M 4

(M) where the constitutional protection existed in that punishment must first be

proportionate to the offence but also proportionate to the personal circumstances of

the offender. In sentencing it would appear the courts are required to craft a

punishment proportionate to both the offence and the offender. This is realised by

positioning the specific offence on the overall scale of gravity and then considering

the relevant personal circumstances of the offender.5

In Ireland punishment cannot be imposed by looking to an offender’s possible future

crime because proportionality is a backward looking principle. Proportionality is

based on fairness; and therefore punishment should reflect the culpability of the

offender’s actions.6 This is achieved by ensuring that the blameworthiness

considerations do not surpass the seriousness of an offence in determining the length

of a sentence. Therefore, when considering an offender predicted to be a danger to the

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* BA (Hons) MSc LLM

1 Von Hirsch , ‘Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons’

(1972) 21 Buffalo Law Review 717.

2 O’Malley, Sentencing Law and Practice (2nd edn, Thomson Round Hall 2006).

3 [1994]1 ILRM 321 (CCA).

4 [1994]3 IR 306 (SC).

5 ibid.

6 Von Hirsch and Jareborg, ‘Gauging Criminal Harm: A Living-Standard Analysis’ (1991) 11 Oxford

Journal of Legal Studies 1.