The imposition by Mr Justice Paul Carney of a suspended sentence on a man who raped a young mother in her home has given renewed impetus to the pre-election bidding war on crime which has seen politicians vying with each other to restrict judicial discretion and to impose mandatory sentences for a wide range of offences.
The focus of the moment is on rape. Attention could shift tomorrow to drugs, guns or whatever else commands headlines.
Rape is a very serious crime which, disturbingly, leads to relatively few successful prosecutions. Its devastating impact on victims would be more credibly addressed by research into why so many do not report rape and what difficulties arise for those who do, rather than glib calls for mandatory sentences which, in themselves, may offer little real benefit to victims or to the cause of justice.
In discussing these issues, the difference between mandatory sentences and sentencing guidelines needs to be understood. Mandatory sentences are laid down by law for certain crimes and allow for no discretion irrespective of the specific circumstances of the case. In contrast, sentencing guidelines outline the factors to be taken into account in sentencing and the broad parameters of minima and maxima for specific crimes. Such guidelines have been laid down by the Court of Criminal Appeal in relation to a number of crimes, including rape.
They include a recommendation that sentences be suspended for the offence of rape only in "wholly exceptional cases". If the Director of Public Prosecutions (DPP) decides to appeal against the leniency of the sentence handed down by Mr Justice Carney, the circumstances of the case and whether or not they can be deemed to be exceptional will be argued in court. The right of the DPP to appeal against leniency is exercised regularly and is successful in the majority of cases.
Against this background, thought needs to be given to our sentencing regime before there is a rush to change it. International research has shown that increased punishment has only a marginal impact on crime levels, with the likelihood of detection a far greater deterrent in premeditated crime. Rape is often not premeditated so the likely sentence will feature even less as a deterrent. As it is, average sentences for rape range from three to five years. There is little reason to think that mandatory sentences would have any significant impact on the reporting and prosecution of sexual offences.
The benefits of sentencing guidelines and judicial training are another matter. There is a need to examine the factors influencing judicial policy. This policy needs to be coherent in the interests of judges and the administration of justice. Judges need to meet regularly and to undergo structured training. All this has been recognised by the judiciary and formed part of its own proposals for the establishment of a judicial council. But legislation to set this up has been languishing in the offices of the Attorney General for years. It should be acted upon.