Serving the Community? Lessons from the UK experience of Community Orders
| Date | 01 January 2013 |
| Author |
Serving the Community?
Lessons from the UK experience of
Community Orders
DARRAGH KIERAN CONNELL1
“All punishment is mischief, all punishment in itself is evil.”
Jeremy Bentham The Principles of Morals and Legislation [1780]
Introduction
With the imprimatur of current Minister for Justice & Law Reform, Alan
Shatter,2 the judicial sentencing power known as the Community Service
Order (“CSO”) is experiencing what could be described as a nascent renais-
sance.3 Operating in a brave new world ushered in by the Criminal Justice
(Community Service) (Amendment) Act 2011,
4
District and Circuit Court
judges have, once again, begun to see the CSO as a meaningful sentencing
option. Aside from its obvious economic value,5 a CSO can provide an
effective means of diverting offenders from a path of wanton criminality.
Notwithstanding these perceived advantages, Irish courts should be mindful
of the mixed UK experience of Community Orders before embarking on the
wholesale expansion of the Irish CSO regime.
This article first examines the changing legislative landscape in which CSOs
operate before considering the nature of, and difficulties experienced by, the
more sophisticated system of Community Orders operative in the courts of
England and Wales. Finally, it will be argued that the new Irish regime of
mandatory CSO assessments (and the consequent increase in the utilisation
of CSOs) is one which, in light of the UK experience, has the propensity to
1
BCL(NUI), LL.M(Cantab.), Barrister-at-Law(King’s Inns), BTT(BPP), Called to the
Irish Bar and the Bar of England & Wales, pupil barrister at 3 Paper Buildings, Inner
Temple, London.
2 Speech by Mr. Alan Shatter, T.D., Minister for Justice, Equality & Defence in Dáil
Éireann during the Criminal Justice (Community Service) (Amendment) (No. 2) Bill
2011 Second Stage Debate on the 7th April 2011. Available at http://www.justice.ie/
en/JELR/Pages/SP11000040 [Accessed 3 October 2012]
3
There was a 40% increase in the number of Community Service Orders made between
2010 and 2011 (2,738 in 2011 up from 1,972 in 2010). The Probation Service Annual
Report 2011 (Dublin: Stationery Office, 2012), p.44
4 Criminal Justice (Community Service) (Amendment) Act 2011 (No.24 of 2011)
5 The 2010 average cost of a Community Service Order was estimated at approximately
€2,200. The average annual cost of imprisonment in 2010 was €65,910. The Probation
Service Annual Report 2011 (Dublin: Stationery Office, 2012), p.27
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DA RR AG H K IE RA N C ON NE LL
undermine the integrity of the criminal justice system it is designed to assist.
It will be argued that a structured, well-resourced community service programme
does have an important role to play in diverting offenders from further
offending, but any such system must have proper coherent sentencing parameters
to ensure community service is only afforded to suitable offenders where its
rehabilitative effects will have a clear ascertainable impact.
Legislative Background
The underlying legislation governing the imposition of CSOs is the Criminal
Justice (Community Service) Act 1983,
6
perhaps one of the most progressive
pieces of penal reform legislation introduced in this jurisdiction since
the Probation of Offenders Act 1907. The advantages of CSOs and other
non-custodial sentencing options were lauded as necessary alternatives to
imprisonment as far back as 1985 in the highly influential Whitaker
Committee Report
7
chaired by the legendary civil servant, Dr T.K. Whitaker.
Indeed, as recently as January 2010, the Irish Penal Reform Trust went even
further in arguing that “[a] political decision must now be made towards the
use of community sanctions as the default penal sanction for less serious
offences and the Government should commit itself to the promotion of
community sanctions throughout the whole criminal justice system as a
replacement for imprisonment.”8 Against this backdrop of critical support
for the expansive imposition of CSOs, it is necessary to consider the existing
nature of this particular sentence in Irish law.
Effectively, pursuant to the 1983 Act, a court may impose a CSO in respect
of an offender who is over the age of 16 years and has been convicted of a
criminal offence for which a sentence of imprisonment of twelve months or
less would be appropriate.9 An important clarification for practitioners is
that the maximum statutory tariff for the offence itself need not be twelve
months imprisonment. Consequently, CSOs may be imposed even in respect
of serious offences provided that the court in question deems the appropriate
sentence one of twelve months or less. In this regard, the corollary UK
sentencing power, the Community Order, has controversially been utilised
as an appropriate sentencing option in respect of violent and/or sexual offences
6 Criminal Justice (Community Service) Act 1983 (No. 23 of 1983)
7 Report of the Committee of Inquiry into the Penal System (Dublin: Stationery Office,
1985)
8 IPRT Position Paper No.8 – Community Sanctions (January 2010), p.11, available at
http://www.iprt.ie/contents/1555 [Accessed 9 October 2012]
9 Criminal Justice (Community Service) Act 1983, (No 23 of 1983), s.2(1) but note that the
Fines Act 2010 (No 8 of 2010) has inserted, by way of amendment to s.2(2), an additional
power, not yet commenced, to provide for the imposition of a CSO by a court where an
offender “(a) has attained the age of 16 years, and (b) stands convicted of an offence in
respect of which the court has imposed a fine that the offender has failed to pay by the due
date for payment.”
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