Darraghkieranconnell - Serving The Community - Lessons From The Uk Experience Of Community Orders.pdf

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Serving the Community? Lessons from the UK experience of Community Orders DARRAGH KIERAN CONNELLI "All punishment is mischief, all punishment in itself is evil." Jeremy Bentham The Principlesof Morals and Legislation [1780]

Introduction With the imprimatur of current Minister for Justice & Law Reform, Alan Shatter,' the judicial sentencing power known as the Community Service Order ("CSO") is experiencing what could be described as a nascent renaissance.' 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 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 Diil 1ireann 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 ProbationService Annual Report 2011 (Dublin: Stationery Office, 2012), p. 4 4 4 Criminal Justice (Community Service) (Amendment) Act 2011 (No.24 of 2011) The 2010 average cost of a Community Service Order was estimated at approximately E2,200. The average annual cost of imprisonment in 2010 was E65,910. The Probation Service Annual Report 2011 (Dublin: Stationery Office, 2012), p.2 7

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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 1983,1 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 Report7 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."' 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.' 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 Criminal Justice (Community Service) Act 1983 (No. 23 of 1983) Report of the Committee of Inquiry into the Penal System (Dublin: Stationery Office, 1985) IPRT Position Paper No.8 - Community Sanctions (January 2010), p.11, available at http://www.iprt.ie/contents/lS55 [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." 6 7

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as well as more typically for those offenders convicted of robbery, theft and criminal damage. In Ireland, a CSO requires an offender to perform unpaid work for between forty and two hundred and forty hours over the course of one year commencing from the date of the order. This time horizon is subject to a judicial power of extension pursuant to section 9 of the 1983 Act. While a full exposition of the nature of the unpaid work required by a CSO is outside the scope of this article, activities such as graffiti removal, as well as picking up litter, gardening and other environmental improvements are illustrative of the nature of an average CSO.10 As considered below, the Irish system is devoid of the twelve "programme requirements"" which inform the more structured UK Community Order scheme. Notably, the court may impose, alongside a CSO, a further penalty for the same offence such as "the revocation of any licence, the imposition of any disqualification or endorsement, the forfeiture, confiscation, seizure, restitution or disposal of any property, or the payment of compensation, costs or expenses." 2 One such instance of the imposition of a combined compensation and CSO sentence was the infamous Tim Allen case when, in 2003, District Court Judge Michael Patwell imposed a sentence of two hundred and forty hours community service combined with a compensation order for E40,000 in lieu of a nine month prison sentence following a guilty plea to possession of pornographic material contrary to the terms of the Child Trafficking and Pornography Act 1998.13 The availability of these types of combined sentences raises the spectre of a potential conflict with the totality principle; a principle repeatedly emphasised by the Court of Criminal Appeal 4 as being integral to the lawfulness of sentencing decisions. The 1983 Act has recently been substantively revisited in the Criminal Justice (Community Service) (Amendment) Act 2011 enacted in October 2011. One of the key changes made by this amending legislation is in respect of section 3 of the 1983 Act. As Byrne notes, "[w]hereas the original s.3 provided that a court may make a community service order, s.3 of the 1983 Act, as amended by the 2011 Act, now provides that a court shall consider whether to make a community service order."" In effect, the legislation now The ProbationService Annual Report 2011 (Dublin: Stationery Office, 2012), p.1 5 " Criminal Justice Act 2003 (UK), s.177 12 Child Trafficking and Pornography Act 1998 (No 22 of 1998) Criminal Justice (Community Service) Act 1983, s.3(3) '3 For further detail, see S. Kilcommins, I. O'Donnell, E. O'Sullivan & B. Vaughan Crime, Punishment, and the Search for Orderin Ireland (Dublin: Institute of Public Administration, 2004) [Hereinafter Kilcommins et all, p.18 7 1o

14

For example, Finnegan J. in The People (atthe suit of the DPP)v Paul Murray [2012]

IECCA 60 (unreported) at p.62: "The totality principle is really but a sub-set of the wider proportionality principle. It ensures that sentencing is somewhat more than an abstract arithmetical exercise by providing that, in the case of multiple offending, the overall sentence imposed is proportionate to the moral delinquency of the offender." 11 R. Byrne, "Class A to Class E: Are you ready for the Fines Act 2010? - Part II" [2011] 29 I.L.T. pp.288-289

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provides for the consideration of a CSO as the mandatory "first resort sentencing option in addition to fines".16 Additionally, in the event that a court is minded to impose a CSO, it is now required to obtain and consider an assessment report prepared and furnished by the Probation Service within twenty-eight days of the request being made.' 7 The propriety of these new changes and the desirability of an expansion in the use of CSOs will be considered below. Once More unto the Breach" Regrettably, a CSO, like any court order, is susceptible to breach by the party against whom the order was first imposed. Thankfully, the 1983 Act, as amended, countenances such a vista in sections 7 and 8 which provide the courts with robust powers to deal with those found to be in flagrante delicto, but as we shall see, opportunities for both abuse and inflexibility abound under these enforcement mechanisms. First, it is necessary to consider when under Irish law a breach is said to have occurred? Thus, according to section 7, an offender is said to be in breach of a CSO if he or she fails to, inter alia, report to a relevant officer as directed from time to time by or on behalf of the Director of the Probation Service; perform satisfactorily for the number of hours specified in the order such work at such times as he may be directed by or on behalf of the relevant officer to whom he is required to report; or notify the officer to whom he is required to report of any change of address. While the above three circumstances are ostensibly clear for practical purposes, the inherent subjectivity of the second ground is of considerable concern when one considers that under section 7(4) "[a]n offender who fails, without reasonable excuse, to comply with a requirement of subsection (1) (the three circumstances set out above) shall be guilty of an offence and, without prejudice to the continuance in force of the community service order, shall be liable on summary conviction to a fine not exceeding £300." In essence, to ground a standalone criminal offence on the basis that a "relevant officer" considers that an offender has failed to perform unpaid work satisfactorilyfor the number of hours specified in a CSO affords the opportunity for a capricious work supervisor to abuse their power. While the propensity for miscarriages of justice exists across the criminal justice system, it is submitted that additional vigilance is required in respect of the section 7(4) offence given the fact that it is the relevant officer themselves who, pursuant to the newly inserted section 7(5), may prosecute the offence. Thus, in a true Kafkaesque distortion, the chief witness and prosecutor of a CSO breach will likely be the same person. The same difficulties inherent in Ibid. Criminal Justice (Community Service) Act 1983 s.3(1B), as inserted by the Criminal Justice (Community Service) Amendment Act 2011 " Shakespeare, Henry V, Act 3, Scene I 16

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allowing arresting Gardai prosecute their own District Court cases" apply mutatis mutandis in respect of relevant officers prosecuting CSO breaches. Moreover, concern about this particular prosecutorial innovation, introduced by section 2(c) of the Criminal Justice (Community Service) (Amendment) Act 2011, is further aggravated by the amended, broader definition of "relevant officer" to include any person who has been assigned by the Director of the Probation Service the responsibility to discharge functions under the 1983 Act, as amended. Evidently the concept of a "relevant officer" has taken on a more fluid definition within the CSO legislative structure beyond the traditional probation officer.20 Minister Shatter justified the amended definition of "relevant officer" as necessary for the "reduction in any unnecessary administrative burden on probation officers" 2 1 by allowing community service supervisors or members of the administrative staff of the Probation Service to carry out functions in respect of community service. Nevertheless, the expansion of prosecutorial duties to a vague group of "relevant officers", designated as such solely by the delegation of authority by the Director of the Probation Service, and who, unlike solicitors and barristers 22 are devoid of any ethical code of practice governing conduct as an advocate in court, is troubling in a constitutional democracy committed to due process of law. 23 An alternative penalty for a section 7(4) offence is provided by section 8 of the 1983 Act. Effectively, section 8 empowers a court, having convicted the offender of a proven CSO breach, to either revoke the CSO or revoke it and deal with the offender for the offence in respect of which the CSO was originally made "in any manner in which he could have been dealt with for that offence if the order had not been made". There are a number of limitations inherent in the enforcement mechanism set down in sections 7 and 8 of the 1983 Act. Principally, unlike the corollary UK Community Order enforcement procedure, there is no mandatory first warning in advance of court proceedings pursuant to a breach. Thus, in the UK, in the event of a breach of a Community Order, the supervising probation officer is required to provide a written warning to the offender.2 4 Such a P. Dwyer, "The Garda As Prosecuting Advocate In the District Court" [1991] 9 I.L.T. 89-91 20 Under the original 1983 Act, "relevant officer" was defined as "a probation and welfare officer discharging functions under this Act." 21 Speech by Mr. Alan Shatter, T.D., Minister for Justice, Equality & Defence in Diil 1ireann 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] 22 See The Code of Conduct of the IncorporatedLaw Society of Ireland and The Code of Conduct for the Bar of Ireland respectively. 23 See Article 38.1, Bunreacht na hEireannand the principles of constitutional justice enunciated in Re Haughey [1971] 1 I.R. 217 24 Paragraph 5, Part 2, Schedule 8 of the UK Criminal Justice Act 2003, if the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give a warning describing the circumstances of the failure, stating that the failure is unacceptable, '9

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warning has two advantages. Firstly, it provides the offender with a meaningful opportunity to redress any behaviour constituting a breach (e.g. lateness, tardy work performance etc.) without recourse to the court. Secondly, it acts as a release valve during the life of a Community Order whereby the probation officer may address slight breaches without commencing a prosecution. Over the course of the duration of any form of community service lasting up to two hundred and forty hours it is perhaps inevitable, given the criminal profile of the persons subject to community service, that there will be one or two instances of unsatisfactory work conduct. Therefore the first warning mechanism provides a proactive probation officer an important option before escalating a breach into a full prosecution while equally hindering a capricious supervisor from commencing a prosecution for a minor breach of the terms of the community service. A second limitation in the Irish CSO enforcement model is that the legislation provides no power for a court to simply disregard a breach in light of the extent to which the community service has already been substantially performed. A hypothetical scenario perhaps illustrates this problem most effectively. If a certain offender is subject to a two hundred and forty hour CSO and performs two hundred and thirty seven hours very satisfactorily, but decides to finish early on the final day of his community order, without reasonable cause, then, under the terms of the legislation, he will be punished under section 7(4) in the same manner as someone who has failed to turn up for a single hour of his community sentence. Critically, the UK legislation addresses the above concern by expressly providing that a magistrates' court, in dealing with a breach, must take into account the extent to which the offender has complied with the requirements of the Community Order.25 The Irish legislation, in contrast, acts as a regressive penal straight jacket in failing to afford judges similar flexible powers to disregard minor breaches or even a normal breach in circumstances where there has been substantial compliance by the offender with the terms and overarching purpose of the CSO. UK Community Orders2 6 Having considered the nature of the Irish community service regime, it is useful, in light of the Irish penal reform community's enthusiasm for expanding the use of CSOs, to reflect on the more expansive model operative in the UK. In this regard, non-custodial sentences in England and Wales experienced a

25 26

and informing the offender that if within the next 12 months he again fails to comply with any requirement of the order, he will be brought back before the court. Paragraph 9(2), Part 2, Schedule 8, Criminal Justice Act 2003 (UK) For general background, see Blackstone's Criminal Practice 2012, Section E, Part 8: Community Orders under the Criminal Justice Act 2003 (UK)

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"quiet revolution"2 7 on April 4th, 2005 when the generic Community Order was introduced to replace, inter alia, the probation order, the community rehabilitation order and the community service order. The new Community Order, replete with a suite of twelve potential requirements, was designed to toughen up community penalties, perhaps echoing the then New Labour Government's mantra of being "tough on crime and tough on the causes of crime". 28 In any event, Community Orders have experienced exponential growth across the UK criminal justice system. As Mair notes, "[b]etween 2006 (the first full year of operation for the new sentences) and 2009, use of the Community Order increased by 9.8 per cent." 29 In total he estimates that, in 2009, approximately 122,796 Community Orders were commenced.3 0 Indeed, Community Orders now represent the default sentence imposed in England and Wales.' While in this respect the Utopia 2 advocated by the Irish Penal Reform Trust has been realised by our closest common law neighbours, it will be argued that this sentencing vista is more accurately described as Paradise Lost.3 Returning first to the legislative underpinnings of the Community Order, section 147 of the UK Criminal Justice Act 2003 allows for such an order to be imposed on an offender aged 18 or over in respect of any offence committed on or after 4 April 2005 save for an offence where the sentence is fixed by law (murder) or where the offender satisfies the requirements for the imposition of a dangerous offender sentence.3 4 Separate Youth Rehabilitation Orders are imposed on offenders under the age of 18 pursuant to the UK's Criminal Justice and Immigration Act 2008. In contrast to the Irish CSO regime, a Community Order contains two or more specific requirements imposed by the court. The twelve potential requirements are delineated in section 177 of the UK 2003 Act and range from a curfew requirement" to a drug36 or alcohol treatment 7 requirement. Invariably electronic tagging will be attached to requirements requiring an G. Mair, "Trends in the use of the community order and the suspended sentence order" [2012] Arch. Rev. 4, p.6 28 "We will be tough on crime and tough on the causes of crime, and halve the time it takes persistent juvenile offenders to come to court." Labour Party General Election Manifesto 1997, p. 6 29 G. Muir, supra note 27, p. 7 30 Ibid. 31 R. Kaye, "Fitting the Crime: Mending Community Sentences" Policy Exchange, November 2010, p.2 3 available at http://www.policyexchange.org.uk/publications/category/item/ fitting-the-crime-reforming-community-sentences-2?category-id=24[Accessed 10 October 2012] 32 See generally T. More, Utopia (1516) 3 See generally J. Milton, ParadiseLost (1668) 3 Criminal Justice Act 2003 (UK), s.225(2) or s.226(2) 3 Criminal Justice Act 2003 (UK), s.104 36 Criminal Justice Act 2003 (UK), s.209 17 Criminal Justice Act 2003 (UK), s.209 27

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offender to be present at a specified place during certain hours of the day. Moreover, the Community Order will normally include an unpaid work requirement, an activity requirement or a programme requirement, all of which entail structured, focused activities so as to maximise the restorative and rehabilitative effects of the sentence. In order to enhance the efficacy and consistency of community service duties, the Criminal Justice Act 2003 (UK) sets down very precise limits on the nature of activities permissible within the ambit of a given requirement. For example, in respect of a curfew requirement, which requires an offender to remain at a place specified by the court for certain periods of time, section 204(2) of the 2003 Act (UK) states that these periods of time must not be less than two hours and not more than 12 hours in any given day and in any event, a curfew requirement within a Community Order must not last for more than six months from the day on which it is made." Before attaching a curfew requirement, the court is required to consider information about the place proposed to be specified in the order, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender. Equally, where the court makes a community sentence which includes a curfew requirement, it must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so. 3 1 This detailed approach to community service requirements has the distinct advantage of enabling authorities to easily prove when an offender has breached the terms of his/her Community Order. Undoubtedly, the imposition of a Community Order places more restrictions on an offender's daily life than an Irish CSO; however, it is important to note that the English legislation expressly ensures that any requirements attached to a Community Order do not conflict with an offender's work, education or religious beliefs. 4 0 A further protection, mirrored in the Irish legislation, 4 1 is that whenever a court is considering whether to impose a community sentence, and what restrictions to put on the offender's liberty as part of that sentence, the court must take into account all the information available to it, generally by means of a pre-sentence report. 42 Given the detailed information and specialist advice contained in pre-sentence reports, it would be unusual for a court to impose a community sentence without first considering such a report. Finally, two further, but important, conceptual differences exist between the UK Community Order and its Irish cousin, the CSO. First, a Community Order simpliciter does not require the consent of the offender before it is imposed by the relevant sentencing court. Consent acts as a sine qua non only for those programme requirements which truly require the full commitment 38 3

40 41 42

Criminal Justice Act 2003 (UK), s.204(3) Criminal Justice Act 2003 (UK), s.177(3) Criminal Justice Act 2003 (UK), s.217 Criminal justice (Community Service) Act 1983, s.3(1B), as inserted by the Criminal Justice (Community Service) Amendment Act 2011 Criminal justice Act 2003 (UK), s.156

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of the offender, namely requirements to attend drug rehabilitation, alcohol treatment and mental health treatment. In Ireland, there is a statutory requirement for the court to obtain the consent of the offender before a CSO is imposed 43 irrespective of what that CSO may entail even though, due to resourcing issues, it will be unlikely to specify any of the three invasive rehabilitative treatments where consent is required in the UK. It is submitted that it is conceptually incoherent for a court's community service sentencing powers to be fully dependent on offender consent especially in circumstances where the likely nature of a CSO will involve basic unpaid work activities such as graffiti removal. To the knowledge of this author, no other judicial sentencing power requires the consent of an offender. For example, it would be ludicrous to require consent to record a sex offenders name on the Sex Offenders Register or to require a murderer's consent to imprisonment for life. Indeed, when one examines the circumstances in which an offender's consent arises in the criminal justice process, such consent is generally triggered at a point in the process prior to conviction where the presumption of innocence is still operative such as where the constitutional right to trial by jury is engaged." There is no constitutional right, entitlement or privilege to refrain from complying with a lawful court order to carry out unpaid work having been found guilty of a criminal offence. The primacy of consent in the Irish CSO model is even more egregious when one considers the second key conceptual difference with the UK Community Order system, namely the threshold whereby a community service sentence is justified. In the UK, the threshold for imprisonment is greater than the threshold required for the imposition of a Community Order.46 Therefore, in accordance with the legislative landscape, an English court is not empowered to impose a Community Order in lieu of imprisonment save in an instance where, in the opinion of the court, mitigating factors, such as a guilty plea, reduce the sentence below the so-called "custody" threshold. This appears to be a justifiable legislative protection to prevent the imposition of community service in circumstances where an offence warrants a term of imprisonment. In the UK, this protection is more honoured in the breach than the observance, but, nevertheless, its existence is an important bulwark against the erosion of the sentencing principle that serious offences crossing the custody threshold should be punished with commensurate terms of imprisonment so as to satisfy the overarching penal purposes of punishment, deterrence and rehabilitation. 47 43 44 45

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Criminal justice (Community Service) Act 1983, s.4(1)(b), as amended. Sex Offenders Act 2001 (No. 18 of 2001), as amended. J. Hamilton, "The Summary Trial of Indictable Offences", [2004] Judicial Studies Institute Journal 154, p.161 Criminal Justice Act 2003 (UK), s.148(1), provides that "A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence." F. McAuley & J.P. McCutcheon, CriminalLiability (Dublin: Roundhall, 2000), pp.98106

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The Irish CSO regime has a very different conceptual starting point than its UK counterpart insofar as community service in Ireland is an express legislative alternative to imprisonment. Indeed, per the terms of section 3(1) (a) of the Criminal Justice (Community Service) Act 1983, as amended, a CSO may only be imposed "[w]here a court, by or before which an offender stands convicted, is of opinion that the appropriate sentence in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment for a period of 12 months or less". While the Fines Act 2010 will eventually broaden the scope of section 3 to allow for a CSO to be imposed in circumstances where a convicted person is in default of a fine,48 the overriding conceptual principle, inserted by section 3 of the Criminal Justice (Community Service) (Amendment) Act 2011, is that a CSO represents a direct alternative to imprisonment. Consequently, in order for a court to impose a CSO, the offence in question must have passed the custody threshold. It is submitted that eliding the threshold for community service with the threshold for imprisonment is wholly improper. There are two important considerations raised by this anomaly. First, community service in Ireland cannot be legitimately utilised to divert first time, minor offenders-say those found guilty of shoplifting-from a path of more serious criminality since a first time offender found guilty of a minor offence is highly unlikely to pass the custody threshold. Secondly, the legislation empowers the courts to sentence a more serious offender to community service in an instance where their offence merits a period of incarceration albeit one of less than twelve months duration. The failure to impose a sentence of imprisonment where one is merited can undermine public trust and confidence in the criminal justice system. This was illustrated by the public furore caused by the imposition of a CSO in lieu of nine months imprisonment in the Tim Allen case. 49 Ultimately, it is submitted that it is preferable for community service and imprisonment to operate as part of an ascending hierarchical sentencing structure thereby avoiding a situation where a serious offence meriting punishment by imprisonment is disposed of using a CSO. This reflects the reality that a sentence of community service is of lesser severity than one of imprisonment. It is therefore submitted that community service should represent the principal non-custodial method of dealing with suitable offenders, rather than a direct alternative to a custodial sentence especially in circumstances where the custody threshold is found to have been crossed.

Assessing UK Community Orders Notwithstanding the more structured and coherent legislative framework in which Community Orders operate, there have been a series of concerns raised Criminal Justice (Community Service) Act 1983, s.3(1A) inserted by s.18(1)(c)(i) and (ii) of the Fines Act 2010 49 Kilcommins et al, supra note 12 48

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about the efficacy of the UK system of community-based sentences. Indeed a Policy Exchange report in November 2010 referred to Community Orders as "the weak link in the sentencing chain."s0 This perception has been accentuated by recent media coverage highlighting the regrettably high level of recidivism amongst those subject to Community Orders." As Mair expertly charts, 5 2 Community Orders experience a myriad of difficulties such as: the scarcity of resources; a lack of creativity and innovation in using the flexibility of the orders; uncertainty about how specific programme requirements are monitored; and the existence of lengthy waiting lists. While these problems are not unique to the UK, the fact that the Community Order is the most common sentence imposed on those convicted of a criminal offence in the UK means that the inadequate functioning of this sentencing power has profound effects on the efficacy of the British criminal justice system as a whole. Turning first to the trajectory of Community Orders in the UK, it is clear that the pressure of budget cuts coupled with plans to reduce the prison population (partly by diverting offenders from short-term prison sentences) is "likely to mean that community sentences will play an even bigger role in the criminal justice system in the years ahead." 5 Thus, the rationale for Community Orders, at least from central government's viewpoint, has overwhelmingly been an economic one. The resultant legislative bias towards the imposition of Community Orders often means that the order is utilised inappropriately such that it is "applied too late and to too many serial offenders to work as a rehabilitative disposal."" According to the UK Probation Service, their role increasingly involves "supervising serial offenders who have the potential to cause considerable public harm."" Since community service acts predominantly as a rehabilitative sentencing option, a key metric by which the imposition of approximately 122,796 Community Orders 6 should be judged is the rate of re-offending. While statistics are sparse in this respect, the British Ministry of Justice using a statistical model estimated that adult offenders given a community sentence in the first quarter of 2009 had a predicted reconviction rate of 36.3% such that those offenders would commit a total of 30,132 subsequent crimes in the year following the imposition of a Community Order.17 so R. Kaye, "Fitting the Crime: Reforming Community Sentences" Policy Exchange, November 2010 available at http://www.policyexchange.org.uk/publications/category/ [Accessed 26 item/fitting-the-crime-reforming-community-sentences-2?categoryid=24 May 2012] 51 BBC News, 21 August 2012, "Community Service Criminals reoffend 400 times a week" available at http://www.bbc.co.uk/ews/uk-19328639 [Accessed 2 October 2012] 52 G. Mair, "Trends in the use of the community order and the suspended sentence order" [2012] Arch. Rev. 4, pp. 7 - 9 5 R. Kaye, supra note 50 54

Ibid.

1 National Probation Service, A Century of Cutting Crime (2007), p. 1 1 56 G. Mair, supra note 52 5 Ministry of Justice, Reoffending of adults: results from the 2009 cohort, (published

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This recidivistic trend is particularly worrying since the existence of a previous Community Order breach is no bar to the imposition of a further Community Order for the commission of a subsequent unrelated offence. The abiding vista of a revolving door is thus not necessarily a fanciful tabloid characterisation of community service in the UK. A second important consideration in assessing the efficacy of community service is public confidence in the integrity of the sentences imposed by the courts. While clearly justice, as opposed to the public perception of justice, should be the overriding guide to decisions taken within the criminal justice system, it is important in any civilised democracy that the rule of law is both acknowledged and respected by the broad populace.ss In this crucial respect, the English experience of Community Orders is particularly instructive since the overall view of the British public to community sentences is strongly negative. According to a study carried out by Policy Exchange," more than a third of those surveyed (38%) think the best phrase to describe Community Orders is "a soft option", followed by a fifth of respondents (22%) who thought these orders are "weak and undemanding". Notably, this scepticism was echoed in a 2008 survey of magistrates by the UK Probation Service, which found that almost 50% of those magistrates surveyed agreed that community sentences were a 'soft option.'o Given the fact that the Community Order is the most common sentencing power utilised in the UK, the lack of confidence in its efficacy amongst the general public is highly damaging to public confidence in the criminal justice system as a whole. It is submitted that such levels of public dissatisfaction with community service as a meaningful sentencing option would be substantively mirrored in this jurisdiction in the event that the CSO became the most utilised sentencing power in Irish criminal courts.

England's Difficulty is Ireland's Opportunity? In addition to the UK difficulties outlined above, there are three domestic issues that militate against the increased utilisation of CSOs in this jurisdiction. Resources Inadequate resourcing has long been a complaint of the Irish Probation Service, which is already overstretched and underfunded. The Criminal Justice March 2011) Table A5, p.3 2 available at http:/www.justice.gov.uk/downloads/statistics/ mojstats/adult-reoffending-statistics-09.pdf[Accessed 5 October 2012] 8 See generally, T. Bingham, The Rule of Law (London: Penguin Group, 2011) and B. Tamanaha, On the Rule of Law: History,Politics and Theory (Cambridge: Cambridge University Press, 2004) 9 R. Kaye, supra note 50, p. 3 9 60 Ibid.

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(Community Service) Amendment Act, 2011 is yet another piece of criminal justice legislation which manifestly fails to take account of logistics and costs. While community service is an appreciably less expensive means of punishment than incarceration," it is critically important that the Probation Service is afforded the necessary funding and personnel to organise and supervise meaningful offender-specific community service. Minister Shatter was recently questioned on this precise issue of CSOrelated resources in Diil tireann and gave the following response: "[tihe Probation Service has restructured the delivery of Community Service nationally under the governance of a dedicated Community Service Unit. Besides the 9 dedicated administrative and probation staff, there are 78 Probation Officers working nationally with a range of duties including community service. "62 Clearly, when one compares this figure with the 3,488 staff currently employed by the Irish prison service,'6 it is evident that if the Irish courts are to continue the trend of substantively increasing the use of CSOs, a major recruitment drive is required to ensure the Probation Service can adequately perform the necessary supervisory role inherent in the imposition of any CSO. Structure In comparison with the system of Community Orders operative in the UK, the existing Irish CSO regime is inadequately structured. There is, therefore, no Irish equivalent of the twelve requirements attached to a Community Order. This unstructured approach has a number of repercussions for the efficacy of community service as a means of rehabilitation. Thus in the absence of specific parameters, it is problematic to assess when a CSO has in fact been breached. A more structured system would also assist in eliminating the regional inconsistencies that currently persist in respect of the imposition of CSOs. For example, the Probation Service's Annual Report 2011 reveals that offenders in Monaghan and Louth appear to be six times more likely to be subject to a CSO than those in Kerry and Wicklow, suggesting that major geographical inconsistencies remain in relation to this form of sentencing. Unlike Community Orders, CSOs in this jurisdiction operate within a packed field of non-custodial sentencing options. Probation orders, conditional discharges, drug treatment court programmes, fines and compensation orders all offer interrelated and overlapping sentencing outcomes. Evidently, the opportunity for synergies by streamlining the complex web of non-custodial sentences is manifest. While the Criminal Justice (Community Service) 61 62

63

IPRT Position Paper No.8, supra note 8, p.5 DAii ireann Debate on Community Service Orders, Tuesday 17th of July, 2012 7/00420.asp [Accessed 6 October available at http://debates.oireachtas.ie/dail/2012/07/1 2012] Irish Prison Service Annual Report 2011 at p.6 available at http://www.irishprisons. ie/images/pdflannualreportlI.pdf [Accessed 9 October 2012]

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(Amendment) Act 2011 has elevated the CSO to a mandatory first resort sentencing option64 alongside fines, it is submitted that the abolition of the myriad of other non-custodial sentencing powers in favour of a more structured CSO would be a laudable act of legislative reconciliation. Unsuitability Mandatory consideration of community service as an option when sentencing any person convicted of an offence where the circumstances merit a punishment of up to twelve months imprisonment overlooks the fact that community service may be wholly inappropriate where the custody threshold has been crossed. In essence, automatically eliding the gravity of an offence with suitability for community service necessarily fails to take account of the fact that a reasonable proportion of offenders may require penal punishment even in respect of a minor offence where the circumstances of its commission or an offender's criminal background are such as to cross the custody threshold. Moreover, community punishment is equally unlikely to address deepseated causes of crime such as drugs, alcohol or other substance abuse. Evidence for this viewpoint is gleaned from the UK experience, considered above, where a substantial proportion of offenders either commit an offence during the life of a Community Order or breach one or more of the requirements imposed as part of a Community Order package. The Irish Penal Reform Trust correctly states that CSOs "should not be seen as a way of dealing with complex social problems, such as social exclusion, addiction and mental health problems. Systems of assistance should operate in the State to keep individuals away from the criminal justice system to the greatest extent possible, including prevention and early intervention mechanisms such as support for parents, communities and appropriate mental health services." 6 s Of course, there is no silver bullet to prevent crime. The CSO is an important option available to the courts to attempt to divert a suitable offender away from a path of criminality. However, the regrettable reality in this jurisdiction is that many suitable offenders are, at present, excluded from the reach of community service. This is because the legislative threshold for the imposition of a CSO is the same as the custody threshold, provided the period of imprisonment is less than twelve months. It is submitted that the hierarchical sentencing structure present in the UK is the correct and preferable conceptual approach whereby community service is not considered a direct alternative to imprisonment, but rather as a serious and meaningful intervention in order to avert the subsequent commission of a crime requiring imprisonment. Moreover, even in an instance where CSOs were imposed only in respect of suitable offenders convicted of minor criminal offences, without a history of dealings with An Garda Siochina, the requirement for offender consent Criminal Justice (Community Service) Act 1983, s.3 as amended " IPRT Position Paper No.8, supra note 7, p.2 6

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to a CSO is a significant impediment to enabling the courts to engage in proactive, non-custodial, community-based intervention. Post-conviction offender consent is anathema to the sentencing landscape in this jurisdiction and, thus, has no proper place in the decision to impose a CSO, save in an unlikely instance where a CSO requires invasive procedures such as drug testing.

Conclusion As Professor Tom O'Malley powerfully posits, sentencing ... is not an area of law susceptible to absolutes. It is essentially an expression of values. In a jurisdiction which claims to be guided by, among other values, the dignity and freedom of the individual, a sustained effort at achieving the maximum fairness and humanity in sentencing is not just a virtue, it is a necessity. 6 Adopting this classical liberal construct, the concept of a CSO is not merely an economically expedient sentencing device, but also represents a fundamental belief that sentencing is not defined solely in terms of imprisonment. Ultimately, the nature of community service is profound evidence that our modern criminal justice system is equipped with an important, functional capacity for compassion, empathy and restitution in the case of suitable offenders. It is submitted that this final clarification is effectively one of several lacunae in the current CSO framework. In essence, the full panoply of sentencing options should be available to the judiciary when dealing with a person convicted of a criminal offence, subject to the specific offence's statutory maximum penalty. To weight the system in a manner which provides community service as the pre-eminent, mandatory option for any person convicted of an offence meriting a term of imprisonment of twelve months or less ignores a number of realities, such as: the underfunded nature of the Irish probation service; the unstructured nature of community service in this jurisdiction; and the profound unsuitability of certain offenders for community service. CSOs do have a place in the armoury of a sentencing judge. However, the argument made in this article is that there is an urgent need to reform the current structure of community service in this jurisdiction to meet the exigencies of modern times and maximise the restorative effect of such a sentence. The UK sentencing power known as the Community Order provides a useful touchstone for what a structured, conceptually coherent CSO should resemble, replete with multiple requirements offering substantial benefits in respect of meaningful intervention, supervision and rehabilitation. 66

T. O'Malley, "Irish Sentencing Reform" [1988] 6 I.L.T. 116

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Nevertheless, it is submitted that the route adopted by the UK courts in transforming the Community Order into the most common sentencing option in the land is not a path that the Irish courts should tread. Structured community service can pay dividends in diverting suitable offenders towards more socially beneficial pursuits than a life of crime, but when such a sentence is repeatedly extended to a huge number of unsuitable offenders, it has the real propensity to undermine the criminal justice system it is designed to assist by eroding public confidence in the courts and precipitating increased levels of re-offending. Let us cherish community service not as the panacea of all criminal ills, but rather as a strong rehabilitative force for good to be utilised only in appropriate cases.