IT IS important not to lose sight of the principle that the selection of punishment is solely for the judge, not the prosecutor, according to the Director of Public Prosecutions.
James Hamilton told a conference at the weekend: "It is proper for the prosecutor to draw attention to the relevant precedents, including precedents relating to the question of what is an appropriate sentence."
He said prosecution lawyers now indicated to the Central Criminal Court whether the offence fell at the upper, medium of lower end of the scale prior to sentencing; this followed a number of judgments where the Court of Criminal Appeal had given real guidance in sentencing. Mr Hamilton was speaking at the third annual Thomson Roundhall criminal conference.
He said this practice should lead to a greater consistency of approach and perhaps a reduction in the number of appeals. Giving instructions concerning submissions on sentencing did place a greater burden on the resources of the office of the DPP.
Tom O'Malley, barrister and lecturer in law in NUI Galway, said: "It surely time we abandoned the language of consistency for good. Our aim should be to develop a coherent as opposed to a consistent sentencing system."
He urged the development of a system of "principles discretion", whereby sentencing remained essentially discretionary, but guided by clearly articulated principles.
Solicitor Dara Robinson told the conference that a multi-disciplinary team had been established by the Central Mental Hospital to investigate prisoner intake at Cloverhill (remand) Prison, to identify those suffering from mental illness and divert them away from the criminal justice system. This team found that "typically the alleged offence is a minor one - public order or minor theft - and the illness is major and long established".
"The combination tends to point to a failure of community healthcare systems," Mr Robinson said, "and there appears to be a relationship between the significantly reduced numbers of persons in local psychiatric hospitals and the intake of prisoners into the criminal justice system suffering from mental illness."
Referring to the operation of the new Criminal Law (Insanity) Act of 2006, which introduced the concept of diminished responsibility, he said it lacked any real attempt to provide a definition of mental illness in keeping with modern legal and medical thinking.
While the creation of a defence of "diminished responsibility" was to be welcomed, he had two criticisms - one was that the finding had to be made by a jury, so it was not possible for the accused suffering from such an illness to plead guilty to manslaughter, with the acceptance of the DPP.
Secondly, it was asking a lot of a jury to make a finding that a person suffered from the kind of mental illness that allowed him to use it as a defence, but not to the degree necessary to be acquitted by reason of insanity, colloquially described as "half mad", Mr Robinson said.