In his delivery of the 2013 Martin Tansey memorial lecture in the Criminal Courts of Justice in Dublin last night, Mr Justice Peter Charleton said that in his role supervising the Judicial Researchers Office, a body that engages in research on behalf of the judiciary, he had been closely involved in the analysis of sentences handed down for sexual assault cases.
He said the fact that compensation is tied in by legislation as a mitigating factor in sentencing in Ireland raised serious questions around the appropriateness of compensation as a mitigating factor in sentencing.
“Compensation is tied in by legislation as a mitigating factor in sentencing. The sexual assault study questions very seriously how this can be wise.
“If money can be raised by the accused, the legislation says that it can be a mitigating factor but if it cannot be raised because the accused and his family are poor, where reasonably does justice stand?”
Sexual assault
"Money has had a definite tendency to yield inconsistent results in sexual assault sentencing," Mr Justice Charleton added.
Compensation might reasonably be left out from criminal cases and put into the realm of a simple civil claim or compensation should be an automatic part of a sentence.
Noting that under the Criminal Justice Act, a court may order that compensation be paid instead of or in addition to another penalty, Mr Justice Charleton asked why the wording “instead of or in addition to” another penalty was chosen.
“If the award of damages had been automatic, there would be no difficulty,” he added.
“It would be part of the responsibility of a judge to also assess civil compensation. By making the approach one of mitigation if money is paid, it is arguable that the legislature made a mistake.”
The judge said that while a victim of violence was entitled to civil compensation, the fact that the accused could pay, and sometimes offered to pay on the basis that their sentence be reduced, “adds a complicating factor because it is not standard . . . but a matter of mitigation that can divert a judge from a proper approach to sentencing.
“One might question whether this legislative structure has introduced an unnecessary and often inappropriate mitigating factor. The Oireachtas might consider the matter again,” he said.
Mr Justice Charleton referred to ongoing research examining sentencing in Irish courts, information which was available to judges through a secure intranet system.
“By seeking out and analysing information, sentencing policy can be improved. In other words, finding out what it is or is not is the foundation of where the courts might go on this issue,” he said.
"From our perspective, self- analysis carries a higher chance of improvement than being informed by mere opinion. That self-analysis is substantially under way,"he said, in his lecture entitled Throw Away the Key: Public and Judicial Approaches to Sentencing – Towards Reconciliation