DPP holds off on giving judges guidance on sentencing
Rulings caused confusion within the DPP’s office about where this sentencing information should come from
Passing sentence: One barrister questioned how much “digging” they were to do into submissions made in mitigation, such as claims of drug abuse or difficult childhoods.
The Director of Public Prosecutions (DPP) has directed its lawyers to give sentencing guidance to judges only in limited circumstances.
The directive came in response to a series of landmark judgments issued last March in which the Court of Criminal Appeal (CCA) ruled that the DPP should be providing guidelines to judges on where a case lies in terms of seriousness.
The court said prosecutors should provide sentencing information from previous similar cases to guide judges in their decisions. According to legal sources, the rulings caused confusion within the director’s office about where this sentencing information should come from.
After the CCA’s judgment, judges in the Circuit and Central Criminal Courts began to ask prosecuting counsel during sentencing hearings if they would be providing any guidance. Barristers replied that the issue was still to be decided upon.
In response, the director’s office issued a written directive to prosecuting lawyers to only provide sentencing guidance to judges in cases involving offences which the CCA itself has detailed guidelines for.
The CCA has issued guidelines for some offences such as rape and manslaughter but has yet to do so for other more common crimes such as drug possession and burglary.
In the March judgments, the appeal court suggested that the Irish Sentencing Information System (ISIS) could be used as a source of information for prosecutors. ISIS is a pilot programme run by the Courts Service which details sentencing patterns in previous cases.
Although it is continuing to build up its database, the DPP believes it still does not contain enough information to form the basis for sentencing guidelines as desired by the appeal court.
There is also concern in legal circles that the CCA’s ruling could be seen to be putting pressure on prosecuting barristers and solicitors to seek the harshest penalty possible for convicted people.
This would contradict a document issued by the Bar Council several years ago which told prosecuting barristers that their job was to offer guidance to judges rather than to seek the toughest penalty.
Another issue of concern for both the DPP and the barristers who spoke to The Irish Times is what role the prosecution is supposed to take with regard to challenging and evaluating the mitigation put forward by convicted people.
One barrister questioned how much “digging” they were supposed to do into submissions made in mitigation, such as claims of drug abuse or difficult childhoods.
“If a person says in their defence that they were abused as a child are we supposed to ask for an adjournment so we can go off and investigate if that’s true,” a junior counsel said. “And if it is true are we supposed to come back and tell the judge they can knock so and so many years off (a sentence) because of it. It’s unworkable when you consider it.”
On May 26th, the DPP went back to the appeal court seeking clarification on these issues, saying it was concerned about the court’s stance after three “highly significant” judgments on March 18th.
Barrister Thomas O’Malley said the nub of the matter was that the DPP was particularly concerned to find out what the court envisaged as the appropriate role of the prosecution after these judgments.
Mr O’Malley said the DPP had “no difficulty whatsoever” in counsel for the prosecution bringing the court’s attention to any relevant sentencing principles, including guidelines of the kind the court developed in the Fitzgibbon and Kieran Ryan cases (see panel).
He said the court in its judgment found it seemed “incumbent on the prosecution” to suggest, where such guidance is available, where the offence fits in to the scheme of sentencing identified and why that is said to be the case.