Sentencing is not an exact science. The task of settling on an appropriate punishment, taking into account the unique circumstances of a given case and of the people involved, can be complex and difficult. All the more so given that Ireland’s system is unstructured and discretionary, leaving judges relatively wide room for manoeuvre.
Yet that doesn't mean that consistency should be unattainable. As pointed out by Tom O'Malley, senior lecturer in law at NUI Galway and a member of the Law Reform Commission, any system that tolerates gross inconsistency is manifestly unfair and risks losing public confidence.
The first obstacle is diagnosing the extent of the problem, given that the paucity of data makes it difficult to form reliable conclusions. The commission's report on mandatory sentencing, due to be published today, points to two studies carried out in 2007 and 2003.
The first, in which District Court judges were interviewed and asked to respond to several vignettes, found high levels of inconsistency when sentencing outcomes were compared. In the second study, by the Irish Penal Reform Trust, researchers observing District Court cases witnessed very different outcomes for cases with very similar factual matrices. Again, there was little consistency in outcomes.
Different outcomes aren’t in and of themselves the problem. When the commission refers to consistency, it is referring to consistency of approach rather than consistency of outcomes. Not all cases of, say, manslaughter – an offence that ranges from almost accidental death to almost murder – should lead to the same sentence. The point about consistency is that like cases should be treated alike and different cases should be treated differently.
To ensure this happens, the commission has restated a recommendation it made twice already (in 2000 and 2011): that a dedicated body such as the judicial council should be empowered to develop and publish guidelines or guidance for judges. These would draw on guidance from the Supreme Court and Court of Criminal Appeal as well as on the information published by the Irish Sentencing Information System.
Progress in establishing the judicial council has been slow, but the Chief Justice has already set up a council on an interim basis and Minister for Justice Alan Shatter has committed to establishing it on a statutory footing. Giving responsibility for sentencing guidelines to the judicial council would make for a more structured system while at the same time giving judges ownership over the project; according to the scheme of the Judicial Council Bill, the members of the council would be the chief justice and the presidents of the High, Circuit and District Courts. In other words, the report's preference is a long way from the model of the sentencing council in England and Wales, which includes six non-judge members and sets down very rigid criteria for judges . In today's report, the principle of judicial discretion is reaffirmed. If more structured sentencing guidance has long been favoured by the commission, the issue of mandatory life sentences for murder, the report makes clear, divided opinion.