DPP holds off on giving judges guidance on sentencing

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.

Mr O’Malley submitted that prosecution barristers should be in a position to make submissions on the appropriate band or range within which an offence falls, provided the offence is one where guidance such as that provided in the Fitzgibbon and Ryan cases is available.

Otherwise, he said, there was insufficient information presently available for barristers to suggest bands or ranges in respect of other offences.

In its March decisions, the appeals court also found that the prosecution should indicate the extent to which it was accepted that factors urged in mitigation by the defence were appropriate and give at least a broad indication of the adjustment, if any, in the overall sentence which it is appropriate in the light of such mitigation.

Mr O'Malley told the court the DPP had particular difficulty with the judges' apparent suggestion that prosecutors might be expected to examine and – if necessary – challenge grounds for mitigation put for- ward by the defence. He said it was inappropriate for counsel to undertake such a task, except in circumstances where a matter being advanced in mitigation was wrong. Mr O'Malley said the purpose of the DPP's supplementary submissions was to receive clarification as to the extent of her obligations in these circumstances. Court of Criminal Appeal: Three key judgments The three key judgments from the Court of Criminal Appeal in March concerned cases of serious assault, possession of a handgun and rape.

A judge gave Adam Fitzgibbon (20) from Limerick a 15-year sentence for an unprovoked attack on a school boy. He carried out an “unprovoked, sustained and vicious” attack on his victim and left him with permanent brain damage after beating him unconscious. He was caught on camera inflicting 65 kicks and stamps to his 16-year-old victim’s head, along with two stamps to his chest and 26 punches.

The appeal court ruled that the sentencing judge failed to consider whether the nature of Fitzgibbon’s problems with drink and drugs stemming from his “particularly severe dysfunctional background” brought the matter outside the type of case where there is a simple reliance on drink or drugs as an excuse.

Given the man's young age and previous record, presiding judge Mr Justice Frank Clarke said the court would consider reports on his progress in prison and hear submissions from both the appellant and the DPP on what an appropriate sentence might be before determining the new sentence to be imposed.

In the second case, Limerick man Kieran Ryan (29) successfully appealed against the severity of the eight-year sentence imposed on him for the possession of a handgun and ammunition.

Mr Justice Clarke said the court required to hear both sides on the proper sentence to be imposed in the light of all the circumstances of the case, including any materials relevant to Mr Ryan’s conduct in prison.

Finally, the court upheld the life sentence imposed on a man who raped four of his daughters over an 18-year period. In its judgment in this case, the court found there was an obligation on the prosecution to draw a sentencing judge’s attention to any guidance, arising from an analysis carried out by the appeal court or the ISIS or otherwise, which touches on the ranges or bands or sentences which may be considered appropriate to any offence under consideration.