It is not surprising that the non-custodial sentence handed down to Tim Allen for the possession of child pornography has been greeted by a storm of outrage. The lucrative internet trade in images of abused children is despicable and any action which encourages it must be condemned utterly.
But much of the criticism of Mr Allen's punishment is misinformed and fails to take account of the reality of the law as it applies in this area.
Allen was prosecuted under the Child Trafficking and Pornography Act. This sets out a number of offences, ranging from kidnapping or trafficking a child for sexual exploitation, through to allowing a child to be exploited in such a way, to distributing pornographic images of children to others, to the least serious of such offences - the possession of pornographic images of children. Allen was prosecuted under this last section.
The more serious offences must be prosecuted in the Circuit Court and carry sentences of up to life imprisonment, but possession can be prosecuted in either the District or the Circuit courts. When a person pleads guilty there is nothing for a jury to decide, so he or she is usually prosecuted in the District Court, though the judge can refuse jurisdiction if he thinks the offence is too grave. The only thing to be decided in the District Court when the defendant pleads guilty is the sentence, and the maximum sentence for this offence in the District Court is 12 months in prison or a €1,970 fine. A person who pleads guilty always receives a lower sentence than the maximum, as does a person with no previous convictions, so the highest sentence Allen could have received was 12 months with some, or all, of it suspended, along with the fine. The prescribed fine would have been derisory for someone of Allen's means.
Instead Judge Patwell adopted the common device - which has no statutory basis - of seeking a donation to charity. This has given the impression of a trade-off, but this is not borne out by sentences in similar child pornography cases in the past, which have attracted a variety of sentences - from nine months with three suspended, to a suspended sentence.
It is arguable that the offence of possession of child pornography should attract higher penalties. When this Act was going through the Oireachtas, however, none of the political voices now so vociferous in their criticism objected to its terms. Should a person who possesses such images, who pleads guilty, and who seeks psychiatric help, be treated as harshly as one who is a persistent and unrepentant abuser of children, with a string of previous convictions?
We must consider what purpose we want our child protection laws to serve. If our first priority is to protect children, then surely we should encourage those who seek out pornographic images of children, and might be tempted by such images to go on to abuse, to seek help at the earliest opportunity.