The expanded role of the executive in criminal justice

Sharon Walker
Wednesday, 12 July 2017

The Irish Constitution divides state government into three powers: the legislature, the executive and the judiciary.  All three branches are involved in dealing with the punishment of offenders.  The legislature creates laws which govern the punishment of specific offences (Art 15.2.1).  The judiciary interprets laws made by the legislature and evaluates the proportional punishment to be applied to each offender (Art 34.1). The executive administers the state departments which carry out the punishment prescribed (Article 28.2). 

Of these three processes, judicial decision-making alone bears the express requirement that it should be conducted in public.  This has had the effect of making judicial sentencing decisions the predominant subject of public scrutiny where punishment is evaluated.  The judiciary was constructed as a highly autonomous, independent power with a wide sentencing discretion in punishment matters.  However much a focal point, this power is only one strand contributing to the punishment policy of the State and its level of contribution to that policy has been diminishing in recent times. 

In 1988, (DPP v Tiernan [1988] IR 250), the Supreme Court strenuously resisted any attempts to dilute the sole decision making power of the judiciary by refusing to establish sentencing guidelines.  It decided that no encroachment was permitted on the independence of the judiciary to determine sentence or to exercise the discretion required to apply the principle of proportionality when deciding punishment.  Changes over the next three decades would erode this position.

First, the executive criminal justice agencies conveyed to the legislature that judicial decisions made in isolation were causing resources to be overstretched.  Judicial decision making appeared highly punitive as the numbers of offenders being committed to prison reached a zenith in the mid-2000s.  The use of unsatisfactory ‘back door’ solutions increased as full temporary and early release from custody became more frequent to deal with prison over-crowding.  This created an unofficial expansion of the executive prison service to effectively decide sentence length. The legislature responded to this with new legislation designed to make executive involvement in sentencing decisions more visible. 

The Criminal Justice (Community Service) (Amdt.) Act 2011 was designed to discourage the use of short custodial sentences from being handed down at trial by requiring the court to consider referring the matter to the Probation Service first. Where the court feels that the appropriate sentence is a custodial sentence of twelve months or less, it may either recommend a Community Service Order (CSO) in lieu of imprisonment, or order the Probation Service to evaluate the offender for a CSO.  This referral to the executive Probation Service to assess offender suitability for the imposition of an alternative sentence is essentially a statutory acknowledgement of the growing need for executive involvement in the sentencing process.  This legislation has been viewed as an acceptable infringement into the judicial domain as it remains open to a judge to impose a short custodial sentence without the necessity for justification.

In addition, the composition of the judiciary has changed.  Younger, progressive and more dynamic judges have been gradually replacing their rather uniform predecessors.  Although judicial independence remains a tenet of constitutional interpretation, this new brand of judge appears to be more receptive to developments that might assist in making consistent and fair decisions.  Three decisions of the Court of Appeal in March 2014 revisited the Tiernan decision which prohibited ‘any standardisation or tariff of penalty for cases’ and seemed to permit guidance to be given on appropriate sentence ranges for certain offences.  (DPP v Fitzgibbon, DPP v Ryan, DPP v Z [2014] 2 IECCA 11-13).

This development might have led to the introduction of sentencing guidelines in Ireland the way the decision in R v Willis (1974) 60 Cr. App. R. 146 paved the way for guidance in England and Wales.  In Willis, the court felt that guidelines for the offences on trial would be useful, just like the Irish Court of Appeal forty years later.  However, external circumstances were at very different stages.  The English Court of Appeal had just replaced the Court of Criminal Appeal in 1966 and was forging its pathway as a new and progressive criminal appeal court.  In Ireland, Ryan, Fitzgibbon & Z were decided as the Court of Criminal Appeal was at the end of its life and was just about to be replaced by the new Court of Appeal just a few months later that October.

A third change has been occurring within the fabric of society itself.  Individuals are more aware of punishment inconsistencies, procedural fairness and wider criminological issues because of increased media coverage.  Improved provision of data ensures that the taxpayer is more informed about how money is spent on crime prevention and treatment.   Political penal populism without tangible results is no longer convincing where public crime levels visibly continue to grow. 

As the judicial branch loosens its grip on the reins of punishment, the executive power has had to take more responsibility.  Traditional punishment ideologies pertaining to denunciation and just deserts might still be politically fashionable, but are practically less effective than deterrent and reformative strategies. Expansion of the executive means that the old descriptive punishment directed by political ideology is being replaced by a more prescriptive punishment, directed by resource availability.

Sharon Walker is a PhD candidate in the School of Law in NUI Galway and her research focuses on the punishment of offenders in the criminal justice system.