In a Spartan conference room on the second floor of Áras Uí Dhálaigh, a modern red-brick building abutting the Four Courts complex in Dublin, a High Court judge and a team of six researchers gather for a weekly progress report. Their task? To answer one of the most sensitive and vexed questions in the Irish legal system: how do judges decide on sentences?
It's slow, painstaking yet quietly groundbreaking work, says Mr Justice Peter Charleton, who supervises the group. Since there is no internal paper trail on sentencing practice in the courts, the team at the Judicial Researchers Office have developed their own, improvised system since the project began last September. First they scour relevant judgments on specific offences from the Court of Criminal Appeal, placing each one in a batch corresponding to sentence bands. Who is getting suspended sentences or up to three years? Who is getting of 5-10 years? And so on.
Next they turn to the online archive of The Irish Times and carry out a trawl for additional cases. Taking the names and dates from these, they listen back to the original sentence hearing using the digital audio recording system that has been in use in the Circuit and Central Criminal Courts since 2008. The team note the sentence and the reasons the judge gave for choosing it, and add the file to the batches.
“The next question is: are there any patterns,” says Judge Charleton.
“We look for patterns like, who is getting smaller sentences, who is getting normal sentences, who is getting higher, who is getting the worst? Then we try to put that together into a narrative.”
Inconsistencies
The backdrop to these efforts is the perennial debate over inconsistencies in sentencing – one that can command media space and stir public opinion like few other legal topics. Broadly speaking, it's a debate that is stymied by a glaring information gap. We know the system leaves ample discretion for judges and that can produce divergent penalties for similar-looking offences, but we have scant statistical information on the overall picture.
Judges are conscious of the lacuna, and the work being carried out by the Judicial Researchers Office is an attempt to put it right.
It was born out of a report on rape sentencing written by Judge Charleton and Aoife Marie Farrelly, then of the researchers office, which was used in a Central Criminal Court decision in 2007. That report examined dozens of rape sentences and classified them so as to show the circumstances that might guide a mild, ordinary or exceptional response. Chief Justice Susan Denham was keen for a similar exercise that would explore the patterns that precedent had laid down for other types of crime, and asked Judge Charleton to steer it.
Difficult task
He suggests that while the media habitually presents judges as out of touch in how they deal with serious offenders, deciding on a sentence can be a very difficult task.
"People call for consistency in sentencing," he argued in a lecture co-written with Lisa Scott, "but it must be remembered . . . that while a judge in Dublin may be one of three or more dealing with that kind of crime and stationed in the Criminal Courts of Justice and so may consult with colleagues as to the 'going rate', all around the country there are judges who see no one from month to month and who are expected to make multiple decisions on any one day on a huge divergence of criminal offences."
Up until last year, there was no way of linking them together or supplying judges around the country with information on recent trends.
Complicating factor
A further complicating factor is that some of the most serious offence categories can encompass a very wide range of circumstances. In manslaughter, for example, the spectrum of culpability runs from accidental death to an attack akin to murder.
“One of my colleagues said to me, ‘Look, it really, really is difficult,’ and one of the most difficult things is where serious harm is caused and the malice isn’t there,” says Judge Charleton.
When a sentencing report is completed, the information is posted on a secure intranet accessible only to judges. It is then published, with individuals’ names removed, on the website of the Irish Sentencing Information System (irishsentencing.ie), which is open to the public.
Sentencing precedent
Judge Charleton believes the research is already having an effect in the courtroom, pointing out that in two recent cases, judges have called for the relevant sentencing precedent to be cited. Three studies have already been completed, and further reports on drugs and dangerous driving are being prepared.
“The advantage of [this] kind of approach is that it lays out what other judges have done without being judgmental about it, and preserves independence, since it can be taken or left.
“It is not rigid, like a sentencing guideline is supposed to be, but is not like making it up as you go along – the accusation often thrown at the judiciary.”