Developing smart principles for sentencing guidelines in Ireland

This is a blog post from Dr. Ian D. Marder (Maynooth University) and Dr. Eoin Guilfoyle (University of Bristol) which was originally written for the Irish Penal Reform Trust. Amongst other things it discusses how the Scottish Sentencing Council's principles and purposes of sentencing guideline could help in the development of a similar guideline in Ireland.

Following the passing of the Judicial Council Act 2019, last year saw the establishment of the Sentencing Guidelines and Information Committee (SGIC). The SGIC comprises eight members of the Irish judiciary nominated by the Chief Justice from across the criminal court hierarchy, and five lay members appointed by the Government. Its stated functions include preparing draft guidelines and amendments, monitoring the operation of adopted guidelines, and collating and disseminating information on sentencing in Ireland.

In creating this statutory body to draft and monitor guidelines, Ireland is following Scotland, England and Wales and other common law jurisdictions in seeking to structure judicial decisions on sentencing, beyond statutory minimums/maximums and guideline judgements delivered by the higher courts. Elsewhere, we wrote about the challenges that the SGIC faces in developing the data collection infrastructure needed to undertake its functions, with limited resources. It was fantastic to see the SGIC recognise these challenges, indicated by its recent tender asking for work on ‘methodologies for gathering, synthesising and analysing sentencing data’. Understanding how other countries collect and use data is a crucial first step in building an infrastructure that permits us to understand current Irish sentencing practices, which in turn precedes any effort to structure sentencing decisions and monitor the impact of doing so over time.

However, technocratic discussions around the measurement of sentencing, the design of sentence ranges and so on, must not take priority over philosophical and empirical conversations on the desirable use and realistic impact of different sentences. In other words, we must first ask ourselves what sentencing should aim to achieve, and explore the research that tells us the most likely way to realise these goals.

As things stand, misconceptions about sentencing are prevalent, and sentencing and penal policies seldom incorporate the findings of decades of criminological evidence. As an example, research generally suggests that increasing sentences does not deter offending, yet this argument still features prominently in political discourse. Along similar lines, while imprisonment is a sure-fire way to make vulnerable people (and their families) suffer (thereby satisfying the goal of retribution), it is not an effective way to prevent reoffending or reduce harm in society. ‘Scared straight’ programmes for young people who offend actually increase crime, while the overwhelming majority of people commit offences while young and stop without having been caught. Those so unlucky as to be arrested and prosecuted are held back from a pro-social future by this process. Despite common understandings of violence as a criminal justice matter, we increasingly see a need to give mental health, youth, housing, education and other services a prominent place in the state’s response. The list of commonly held beliefs about sentencing that the evidence contradicts goes on.

This will be relevant as the SGIC designs offence-specific guidelines, but more pressing is the development of new sentencing principles and purposes for Ireland. The Scottish Sentencing Council was established in 2015, and its first substantive task was to develop a ‘Principles and Purposes of Sentencing’ guideline. This aimed to provide a clear, transparent statement on the aims and approach to sentencing in Scotland and promote consistency within sentencing. By beginning with a similar task in Ireland, the SGIC can facilitate a national conversation on what we can reasonably expect sentencing to achieve and the desirable role for criminal justice in responding to social problems. This would also give them the time to develop crucial data collection infrastructure before designing offence-specific guidelines.

The purpose of this piece is to contribute to the conversation about the principles of sentencing in Ireland. Below, we have reproduced elements of the Scottish Principles and Purposes of Sentencing guideline, and provided some drafting suggestions for a similar document in the Irish context. We hope that this will ‘get the ball rolling’, encouraging greater public and political debate on the appropriate story to tell about the role of sentencing and criminal justice in society. We also hope that this helps civil society and researchers collaborate with the justice sector on guideline development, and even take the lead on consultation with stakeholders as to what goals the guidelines should prioritise.

The core principle of sentencing

The Scottish guideline’s core principle is that sentences must be ‘fair and proportionate’. We would prefer to see a clear statement that punishment may have its place, but overwhelmingly exacerbates rather than solves social problems. Moreover, sentencing research from Scotland points to the futility of the common progressive refrain of ‘prison as a last resort’, in which imprisonment remains the default option for those failed by society and social provisions, and the ‘alternatives’ must justify themselves, rather than the other way around. This is not to take away from the need for sentences to be fair and proportionate, however, but as society and policymakers increasingly recognise the importance of multi-agency and multi-sectoral responses to crime and harm, it is essential to put messages around public health and community relations at the core of justice. As such, we have drafted the following core principle of sentencing for Ireland:

Sentencing in Ireland must be fair, proportionate and involve the least punishment necessary to contribute towards the safety, health and connectedness of our communities. [Changes from Scotland underlined]

We believe that this maintains the strongest elements of the Scottish principle, while placing the desired goal (safe, healthy, connected communities) alongside the core principle. This recognises that punishment generally, not just imprisonment, should only be used when it is needed. The term ‘contribute’ indicates that criminal justice has some role to play in achieving this goal, but cannot do so alone.

Requirements of the principle

The Scottish guideline provides six requirements for sentencing to adhere to its core principle of fairness and proportionality. Seemingly unordered, the guideline requires: individualised sentencing according to all the relevant factors in each case; that sentences should ‘be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case’; that reasons behind sentencing ‘must be stated as clearly and openly as circumstances permit’; that sentencing decisions must be made lawfully, with regard to applicable guidelines; that nobody should be discriminated against in sentencing; and that consistency and predictability require similar sentences for similar cases.

Small additions, connecting with our draft of a core principle, can improve this substantially. For example, the minimisation of severity is strong in the Scottish guideline. Recognising that coercive confinement may periodically be necessary for public protection, but that it is generally used in a way that makes desistance and community safety less likely, it would be interesting to see the Scottish guideline built upon by adding a presumption in favour of community-based, holistic justice responses. It might state, for example:

Sentences should be served in the community whenever possible, ensure access to all the services that will help prevent and reduce harm, and be no more severe than is necessary to achieve the appropriate purpose of sentencing in each case. [Changes from Scotland underlined]

Even stronger, this could provide for judges to consider the potential harm caused by prisons and punitive sentencing on individuals and society, in relation to mental health, families and dependents, employability and other impacts. This would be in line with the Criminal Justice (Community Service) Amendment Act 2011. In requiring judges to ‘consider’ imposing a Community Service Order in all cases where they would otherwise have imposed a prison sentence of 12 months or less, this aims to reduce the use of short-term prison sentences, although its impact on the use of Community Service Orders has been limited to date. We would also like to put forward for debate the suggestion that ‘people should be treated equally’ in the Scottish guidelines might additionally refer to equitable treatment, and that stronger language could help encourage judges to document the reasons for sentencing decisions and to take into account the evidence on the effects of different sentencing options when making decisions. Given the emphasis on process, we might also see a reference to sentencing processes carried out with respect for human dignity.

The Scottish section on principles finishes by defining ‘similarity’, usefully indicating that it is not necessary to define all the subjective terms used in guidelines, but that it is possible to provide definitions if required.

Purposes of sentencing

The Scottish guideline has two provisions on the purposes of sentencing. The first states that sentences may aim to achieve different purposes depending on the case, but should always reflect the core principle outlined earlier. The second provision is divided into five bullet points, explicitly unordered, which provide that the purposes of sentencing ‘may’ include protecting the public, punishment, rehabilitation, giving the offender the opportunity to make amends, and expressing disapproval of offending.

In England and Wales, s.142 of the Criminal Justice Act 2003 likewise outlines the purposes of sentencing. The main difference between the five headlines in the Scottish guideline and the five provisions of s.142 in the Criminal Justice Act 2003, is that the former lists denunciation (expressing disapproval of offending), while the latter includes ‘the reduction of crime’. In Scotland, moreover, deterrence is integrated into the ‘protection of the public’, whereas this appears under ‘the reduction of crime’ in England and Wales. Both notably incorporate all the generally accepted purposes of sentencing, without prioritising one or another. Indeed, both imply that judges retain full discretion to prioritise and weight these different purposes in a case as they see fit. As Ashworth and Player stated after the 2003 Act, however, ‘it is as plain as a pikestaff that these purposes may conflict in their application to any case’ (2005: 825).

In Ireland, the SGIC’s role in articulating the purposes of sentencing is even more important as these are not set out in statute. There are many potential benefits of clarifying the purposes of sentencing, including for public awareness and understanding, and for improving transparency and consistency in sentencing decisions. We wonder whether a single, primary purpose could provide an overarching goal under which the other (sub-)purposes can be applied in any given case. Could this be something in the arena of ‘harm reduction’, to correspond with the language of drug reform, public health and community safety, and with recent efforts to develop a crime-harm index that differentiates between offences based on the harm that is done? It seems worth considering whether a single purpose is possible and, if so, what it could be.

Of further interest within the Scottish guideline is the explanation of punishment as ‘normally resulting in some sort of loss’. This is useful, in that it can help us recognise the range of losses experienced by those involved in criminal justice, including the long-term impact of criminal records, and the intense experience of the penal process itself and of rehabilitative and reparative (i.e. theoretically non-punitive) measures.

The provisions on rehabilitation and reparation can also benefit from changes. With respect to the former, it is time that penal policies move from the language of rehabilitation to that of desistance. This would be to recognise that desistance is a process, that relapses are not failures, that de-escalation and deceleration are successes, and that the punishment is far from the greatest driver of pro-social behaviour.

In relation to the latter, the Scottish guideline provides for sentences to ‘recognise and meet the needs of victims and communities by requiring the offender to repair at least some of the harm caused.’ Learning from restorative justice, however, the process of making amends should ideally involve those with a stake in the offence, where possible, in identifying how harm can be addressed and repaired through a voluntary and empowering process. Moreover, several jurisdictions, including Northern Ireland, intentionally locate restorative justice at the pre-sentence stage of the court process to inform sentencing. As such, we could see the following provision as an Irish purpose of sentencing:

Sentencing may also aim to recognise and meet the needs of victims and communities by involving these parties in a restorative process that enables the offender to repair at least some of the harm caused. [Changes from Scotland underlined]

The research evidence on stigma, exclusion and trauma could further inform the Irish guideline, if it were to incorporate the concept of reintegration as a purpose of sentencing, or to include the best interests of children, for whom losing a parent to imprisonment can breed intergenerational cycles of vulnerability.

Whatever your views on these particular suggestions, the point is that sentencing too often exacerbates the social problems it aims to solve. Sentencing guidelines are an opportunity to frame things differently, or risk representing more of the same. All those who understand the evidence on sentencing must engage with the process of their design to pull them as far as possible in a social and evidence-based direction.

An opportunity for smarter sentencing, if we can take it

The above drafts are mere suggestions that we hope to contribute to a conversation on sentencing in Ireland. The development of guidelines is a long-term process, but academia and civil society should engage early. If the SGIC were to start with a ‘principles and purposes’ document, that need not include everything we might want to see. Indeed, the Scottish Sentencing Council is now drafting specific sentencing principles for sentencing young people, for which they have undertaken considerable consultation and research on cognitive and emotional maturity. Still, whatever the SGIC prioritises will set the scene for its future work and for penal policy in Ireland for generations to come. We must see its early work as a major opportunity to codify a new, evidence-based narrative on sentencing in Ireland.

Questions remain as to the scope and powers of the SGIC, the relationship between their outputs and the guideline judgements of the Court of Appeal, their ability to alter sentencing practices, the methods they can use to collect and use data, and other legal and technical issues around their status and work. As these issues are worked through in the background, it is essential that academics, civil society, the justice sector and other stakeholders collaborate to consider what should be the principles and purposes of sentencing in Ireland, and how to ensure – whether through the guidelines or otherwise – that sentencing policy and practice corresponds closely with these aims and goals. This is not, as the founder of the Scottish Violence Reduction Unit, rightly says, a call for ‘soft’ justice. The evidence is clear: crime and violence emerge from social problems, best tackled through prevention and compassion. Smart sentencing guidelines would put this truth at their core. Whatever the SGIC does produce will indicate how far Ireland has travelled in our journey towards a holistic, evidence-based response to crime, violence and harm.

The authors are interested to hear any feedback or observations from readers on the proposed principles and purposes of sentencing set out above. If you have any thoughts you would like to share, please contact Ian on ian.marder@mu.ie.