While reading Richard Posner's insightful perspectives, How Judges Think, on judicial decision-making in the US, I experienced a flashback moment of a salutary episode near the start of my career as a probation officer in London.
I had been allocated responsibility for preparing a pre-sentence report on Eithne (not her real name), who was being held on remand awaiting sentence at the Crown Court for a series of violent offences committed with a co-defendant (whose report was being prepared by a probation colleague). The interview was a challenging one, as Eithne's personal history appeared to encapsulate what would become, in the context of court report preparation, a depressingly familiar story of a litany of abusive and broken relationships, negative peer influences and unspecified emotional traumas.
She presented as someone very capable and engaging, whilst guilefully downplaying the harmful impact of her offending. I later recognised this resulted in an insufficient focus in my report on the gravity of her actions measured against the proper need for some form of protective sentence.
My local manager encouraged me to attend the sentencing hearing (who at the time rightly identified that probation supervision could be advanced for all types of offences outside of mandatory sentences). But whose uncritical attention to the area alluded to above (reports were routinely gate kept prior to being sent to courts) led to a very uncomfortable courtroom exchange.
On arrival at the Crown Court, I was approached by Eithne's counsel whose disapprobation on my proposed sentencing recommendation (as it was denoted at the time) was clear; 'What! Probation...for offences of this seriousness?'.
Feeling more than a little disconcerted, I awaited the sentencing hearing with mounting apprehension. Eithne was led into the dock from the cells below with her co-defendant. After some preliminary hesitation, the Judge asked that I speak to my report as he wanted to hear more about how I had arrived at my conclusions and was interested in some aspects of the 'defendant’s background that might need amplifying’.
'Tell me Mr Guilfoyle, from your professional experience, why do you believe that the defendant whose disgraceful conduct and behaviour in the commission of these wicked offences that have been shockingly outlined by the prosecution, should merit a period of three years’ probation?'. Somewhat unnerved by this opening, I endeavoured to outline the constituent contents of my report that I perceived to be the basis for a well-founded, and arguably welfarist, orientation that could help to mitigate any potential future harmful behaviour, such were the much vaunted rehabilitative benefits of probation supervision that some of the past familial damage that I connected to Eithne's offending history could be safely addressed.
Further judicial questioning continued and I stole a glance at Eithne in the secure dock looking distinctly uneasy. After retiring for a few minutes, the Judge re-entered the court room and asked that both defendants stand for sentence.
‘Ms *, I have listened with considerable interest to what your probation officer had to say and read from his helpfully comprehensive report...when I came into the court room earlier I had in mind a sentence that ran into double figures for these offences…offences that were violent, calculated and dishonest.... after hearing from Mr Guilfoyle and reading his report I sentence you to a term of imprisonment of * years’.
Her co-defendant who had played a lesser role in the commission of these offences was sentenced to a shorter term of custody. Before she was taken from the court I went to see Eithne in the cell area.
She expressed appreciation for my efforts and my presence at the court. ‘What was that term you used in your report’ she asked 'offering her the possibilities to change?'. I left the court building to see the prison van speed out into the heavy traffic and my professional contacts with Eithne ended (she was then allocated to a prison through-care team).
Some while later, I was reading one of the legal journals that were sent to the office and recoiled when I read some dismissive comments from the sentencing judge in a comment piece, that referred to my 'wholly unrealistic' recommendation in a 'very serious case'.
In a more reflexive moment, I recognised that maybe a more realistic sentencing proposal might have been less 'stressful', but I drew some solace from a seasoned probation colleague who noticed my disquiet, ‘Mike, better that you hold fast to what probation is all about, the fact that offering the possibilities for clients to change so as not to harm again was more important than the occasional judicial rebuke!’.