Evaluation of Recommendations for the Strategic Review of Penal Policy

Contemporary Issues in Criminal Justice

Peruse the Final Report of the Strategic Review of Penal Policy and the list of recommendations. Then consider (1) whether their implementation can, or indeed should, be achieved, and (2) whether implementation of penal policy through the criminal law/justice legislative programme will meet the stated goal of making Ireland “a safer and fairer place.”

Introduction

Former Minister for Justice and Equality Frances Fitzgerald heralded the aim of the Strategic Review of Penal Policy Report, published in 2014, to make “…Ireland a safer and fairer place…”[1] From the outset, as stated in the Report, “…the primary goal of the review is crime prevention and securing a reduction in reoffending…”[2] The first part of this essay will examine some recommendations of the Report and whether their implementation can, or indeed should, be achieved, focusing especially on the recommendation to introduce a programme similar to the Youth Diversion programme to deter young people above the age of 18 from offending and being detained within the criminal justice system, the importance of victim’s rights within the within the court  and the steps taken by the University of Limerick to push the implementation of these recommendations. Whether the implementation of a penal policy through the criminal law/justice legislative programme will meet the stated goal of making Ireland a “safer and fairer place”[3] will also be considered in this essay. It was stressed in the Report that there is a “…need to ensure that future penal policy adopts a coherent approach…”[4] and this essay will attempt to determine whether this has been a success, thus far, in the Irish Criminal Justice System.

Importance of Victim Rights within the Court Room

Recommendation 7 of the Report sets out that the victim’s role in the criminal justice system should be fully acknowledged. As part of this the Report states that there must be a full implementation of the EU Directive (2012/29/EU) which establishes “…the minimum standards on the rights, support and protection of victims of crime and ensures that persons who have fallen victim of crime are recognised and treated with respect…”[5] In the 17^th and 18^th centuries in Ireland, the victim’s main role was to gather and present evidence and to act as witnesses during hearings whereas in the 19^th and 20^th centuries there was a shift and the State assumed responsibility for prosecuting and policing crime. However, this evolution has brought about the “…exclusion of the victim, who had little or no role in the State versus Accused model of criminal justice…”[6] Professor Shane Kilcommins, Dr Susan Leahy and Dr Eimear Spain from the Centre for Crime, Justice and Victim Studies in Ireland and the School of Law in the University of Limerick have taken great strides in attempting to understand the concept of victims’ rights through informing the public and putting forward proposals of legislative reform to highlight the place of victims within the Irish Criminal Justice System.

It can therefore be said that the tide is turning in Ireland, victims are now being considered as a vital piece of the criminal justice process, several victim-orientated measures have been introduced including the publishing of the revised Victims Charter in 2010 and the National Victim Services team that was established by the Probation Service, the aim of which is to respond effectively to the queries of victims. The Report highlights however that it is clear from victim support groups that “…the current situation regarding victims in the criminal justice system is still inadequate…”[7]

There are few charities in Ireland that support victims during the trial process “….V-SAC is the only charity in Ireland dedicated to supporting victims of crime…when they have to court and face the person accused of doing harm to them or their loved one…”[8] proving that the recommendation of furthering victim rights is needed. “Victims of sexual assault are being left humiliated and “destroyed” by the criminal justice process, which often affects them more than the offence itself, according to a report prepared for the Government,”[9] There is a danger, however, that the increased scrutiny on the victim may cause further distress as they recount their experience. Not enough steps have been taken by legislators to put in place a strategy in the criminal justice system where the presentation of victim evidence is sensitive and tactful. “In other jurisdictions, the criteria for gathering evidence and how it is presented for prosecution are being adjusted to take account of the special nature of these offences and the dignity of the victim. We need to examine if that’s possible here [in Ireland] too,” [10]

Judging from recent cases in Irish history it is clear that there is a constitutional imbalance between the rights of the defendant and the rights of the victim. This recommendation can and should be implemented to give more of a voice to the victim. Due to increased amount of high-profile sex abuse cases in the Church coming to the fore and influence of the Me-Too movement in the Unites States “…the systemic abuse that occurred in post-Independence Ireland [has] firmly placed victimhood on the public agenda…”[11]  pushing victim rights to the fore. “Irish society [has] been forced to confront widespread experiences of victimhood, aided by a media industry that was becoming more adept at individualising experiences of victimhood through focused analysis and imagery…”[12]

Importance of Diverting Young Adults from the Criminal Justice System and Offending

Recommendation 4 of the Strategic Review of Penal Policy Report states that a “programme similar to the Youth Diversion Programme be introduced for young people above the age of 18 with an initial focus on 18 – 21-year olds”[13] It is recommended that all relevant Government Departments, agencies and the Gardaí should consult and formulate a strategy to target this group using current and future resources. The Garda Adult Cautioning Scheme was introduced in 2006 but only on a non-legislative basis. “It provides an alternative to bringing before the District Court persons against whom there is evidence of the commission of offences of a less serious nature, and where prosecution is not required by the public interest and a caution would be an effective response”[14] The person must be willing to accept responsibility and primarily applies to Criminal Damage, Public Order and Minor Theft offences. On the surface a Young Adult Cautioning Scheme seems like an easily applicable concept that should be implemented but there are more factors to be considered.

Different factors of motivation of adults accepted into adult cautioning programmes was considered by Superintendent Derek Smart of the Ennis Garda District, who stated “For an adult caution you need to have a clean record…we have seen mature adults, people who are in their 40s who would maybe have hit difficult times…”[15] putting forward the idea that “…the issuing of adult cautions [are] becoming more prevalent in recent times, something Gardaí have attributed to the current economic climate…”[16] This suggests that the motivation to commit a crime for the first time regardless of age, runs deeper than just adolescent boredom, the economic downturn is a key factor. These factors among others would have to be considered in the implementation of a Young Adult Caution Programme, which requires a large volume of research and evidenced based case studies to ensure that any loopholes in such a scheme be covered. It is not outrageous to consider the possibility that if a Young Adult Caution Scheme was established in Ireland that organised crime gangs may attempt to use it to their advantage, using former innocents to commit crimes on their behalf, to then be “let off” with a warning.

On the other side of the spectrum, another criticism of the scheme would be that the diversion away from the Criminal Justice System may lead to what is known as a “net widening effect.” This refers “…to the situation where individuals who may have been dealt with informally, such as receiving a reprimand or a telling off from a police officer, are now brought into the criminal justice system as new formal mechanisms for dealing with their offending have been introduced…” (Department of Justice, Equality and Law Reform, 2010; O’Callaghan et al., 2004), “The net effect is an increase in the numbers of individuals entering the criminal justice system due to an expansion in the provisions to address their criminal behaviour”[17] Therefore, an argument against the implementation of this recommendation would be uncertainty against future measures that devalue the determination of the Gardaí.

The Research Evidence into Policy, Programmes and Practice (REPPP) Project based in the School of Law in the University of Limerick was established in 2016 to contribute to developing evidence -based youth crime policy in Ireland, some of the research projects included in their work programme include a project on “The development of a model of evidence review to assist youth crime policy-decision making in Ireland”[18] This is the key as to whether a Young Adult Caution Programme would potentially succeed in Ireland. For a programme to be implemented evidence is necessary to prove that it can be successful, not just on a community level but on a wider scale. The efforts by the REPPP Project proves that there is value in implementing schemes against youth crime in Ireland.

The Report of the Commission on the Future of Policing in Ireland[19] placed emphasis on human rights as the foundation and purpose of policing. “An Garda Síochána should have a human rights strategy and a human rights unit within the organisation to develop, implement and monitor the strategy,”[20] as the purpose of policing is protecting the human rights of society. Therefore, to implement the recommendation of a Young Adult Caution Scheme in the face of such a report, Human Rights would have to be considered. There are many factors, government reports, and legislation to be considered in implementing this recommendation but it is necessary given the evidence that being exposed to crime at a younger age leads young adults to be more susceptible to committing crimes.

What is Penal Policy, and what is the condition of Penal Policy in Ireland

According to the Irish Penal Reform Trust, their vision for Ireland is to establish a penal policy that focuses on “…non-custodial responses to crime and which has rehabilitation and social reintegration at its centre…”[21]  The Strategic Review of Penal Policy Report suggests that penal policy in Ireland has evolved fragmentedly, developing around specific types of offences than one singular cohesive policy piece. The disjointed nature of legislation in Ireland is reflected in its penal policy, in this Report and from its heavy reliance on imprisonment with little structure in place as to rehabilitation and re-integration of prisoners and former offenders back into society after fulfilling their sentences. The main resolution to crime seems to be detainment of offenders, rather than character reformation, there is a focus on the punitive approach. It has been well established that the law across many legislative categories in Ireland is need of major reform.

Ireland was one of the last Member States of the European Union to instigate a referendum to Repeal the Eighth Amendment of the Irish Constitution, which prevented legal abortion in Ireland. In 2017, a report by Nils Muižnieks, the then, Council of European’s Commissioner for Human Rights “…singled out Ireland as an example of a country with highly restrictive abortion laws and that it has…yet to investigate the practice in an impartial, independent and thorough way…”[22] Though today the 8^th Amendment has been repealed, the amendment is still yet to have been put in place, proving that regardless of the acceptance of any recommendations and proposals made in previous Criminal Justice Reports, the likelihood of any of these being implemented in the near future is almost inconceivable.

There are some positive recommendations to be seen in the Report, regarding women but it fails to consider that a similar strategy is necessary for young men. While it recognises that Ireland’s prisons are overcrowded, and that “…Ireland has resorted too much to imprisonment as a sanction…”[23] it does little to recommend any strategic solutions to relieve this. The previous Whitaker Committee Report published in 1985 could be said to have faced up to the endemic problems of our prison system.

It can indeed be said that attempts and measures have been made to implement penal policy through the criminal law/justice legislative programme with the aim of meeting the stated goal of making Ireland “a safer and fairer place.” The recommendations considered here are not without their flaws but should be implemented in the interests of victims and young adults. The former Minister for Justice, Frances Fitzgerald previously stated that “…in the past, we have had plenty of reports but not enough implementation. I will not let this be the case with the Penal Policy Review…”[24]  The Report is a step in the right direction but it falls short of making Ireland “a safer and fairer place” as it “…fails to address many of the deep seated problem in Ireland’s prisons, and since 2014, how many, if any, of the recommendations have been implemented in any shape or form in Ireland?

Bibliography

1. Blackwell N, “Court cases should not be another assault of rape victims” The Irish Times, (Dublin, 2 March, 2018) < https://www.irishtimes.com/opinion/court-cases-should-not-be-another-assault-of-rape-victims-1.3411544?mode=amp> accessed 16 October 2018
2. Centre for Crime, Justice & Victim Studies, Youth Justice (REPPP Project) (Limerick, 2016) < https://ulsites.ul.ie/ccjvs/youth-justice-reppp-project> accessed 15 October 2018
3. Centre for Crime, Justice and Victim Studies, School of Law, UL Research Impact Programme “Giving a voice to victims in the Irish criminal process” (2018) < http://www.ul.ie/research/sites/default/files/Case13-GivingaVoicetoVictimsintheIrishCriminalProcess.pdf> accessed 14 October 2018
4. Commission on the Future of Policing in Ireland, The Future of Policing in Ireland (Report), 2018
5. European Commission, “Victims’ Rights” (Victims’ rights in the EU) < https://ec.europa.eu/info/policies/justice-and-fundamental-rights/criminal-justice/victims-rights_en>
6. Gallagher C, “Rape Victims left “humiliated” by “barbaric legal system” The Irish Times, (Dublin, 10 May,2018) < https://www.irishtimes.com/news/crime-and-law/rape-victims-left-humiliated-by-barbaric-legal-system-1.3510442> accessed 14October 2018
7. Hobbs A, “Adult Cautions Becoming More Prevalent,”  The Clare Champion, (Clare, 28 February, 2014) < http://clarechampion.ie/adult-cautions-prevalent/> accessed 16 October 2018
8. Irish Penal Reform Trust, ‘Alternatives to Custody’ (Irish Penal Reform Trust (IPRT), <http://www.iprt.ie/alternatives-to-custody> accessed 13 October 2018
9. Leogue J, “Court help for victims of crime expanded” Irish Examiner, (Dublin, 11 August, 2018)                                               < https://www.irishexaminer.com/breakingnews/ireland/court-help-for-victims-of-crime-expanded-861484.html> accessed 17 October 2018
10. Ni Aodha, G, Ireland’s restrictive abortion laws have been criticised in report on women’s health” thejournal.ie, (5 December 2018) < http://www.thejournal.ie/eu-report-womens-health-abortion-3732024-Dec2017/> accessed 16 October 2018
11. Strategic Review of Penal Policy, Final Report, 2014
12. Tolan, G and Seymour, M (2014) “Increasing the Potential for Diversion in the Irish Criminal Justice System: The Role of the Garda Síochána Adult Cautioning Scheme,” Irish Journal of Applied Social Studies: Vol. 14: Iss. 1, Article 7  <https://arrow.dit.ie/cgi/viewcontent.cgi?article=1221&context=ijass > accessed 17 October 2018
13. Warner K, “Review of the prison system fails to tackle endemic problems”, (23 October, 2014) < https://www.irishtimes.com/news/crime-and-law/review-of-prison-system-fails-to-tackle-endemic-problems-1.1973202> accessed 17 October 2018

[1] Strategic Review of Penal Policy, Final Report, 2014

[2] ibid

[3] ibid

[4] ibid

[5] European Commission, “Victims’ Rights” (Victims’ rights in the EU) < https://ec.europa.eu/info/policies/justice-and-fundamental-rights/criminal-justice/victims-rights_en>

[6] Centre for Crime, Justice and Victim Studies, School of Law, UL Research Impact Programme “Giving a voice to victims in the Irish criminal process” (2018) < http://www.ul.ie/research/sites/default/files/Case13-GivingaVoicetoVictimsintheIrishCriminalProcess.pdf> accessed 14 October 2018

[7] Strategic Review of Penal Policy, Final Report, 2014

[8] Joe Leogue, “Court help for victims of crime expanded” Irish Examiner, (Dublin, 11 August, 2018)                                               < https://www.irishexaminer.com/breakingnews/ireland/court-help-for-victims-of-crime-expanded-861484.html> accessed 17 October 2018

[9] Conor Gallagher, “Rape Victims left “humiliated” by “barbaric legal system” The Irish Times, (Dublin, 10 May,2018) < https://www.irishtimes.com/news/crime-and-law/rape-victims-left-humiliated-by-barbaric-legal-system-1.3510442> accessed 14October 2018

[10] Noeline Blackwell, “Court cases should not be another assault of rape victims” The Irish Times, (Dublin, 2 March, 2018) < https://www.irishtimes.com/opinion/court-cases-should-not-be-another-assault-of-rape-victims-1.3411544?mode=amp> accessed 16 October 2018

[11] Centre for Crime, Justice and Victim Studies, School of Law, UL Research Impact Programme “Giving a voice to victims in the Irish criminal process” (2018) < http://www.ul.ie/research/sites/default/files/Case13-GivingaVoicetoVictimsintheIrishCriminalProcess.pdf> accessed 14 October 2018

[12] ibid

[13] Strategic Review of Penal Policy, Final Report, 2014

[14] ibid

[15] Austin Hobbs, “Adult Cautions Becoming More Prevalent,”  The Clare Champion, (Clare, 28 February, 2014) < http://clarechampion.ie/adult-cautions-prevalent/> accessed 16 October 2018

[16] ibid

[17] Tolan, Graham and Seymour, Mairéad (2014) “Increasing the Potential for Diversion in the Irish Criminal Justice System: The Role of

the Garda Síochána Adult Cautioning Scheme,” Irish Journal of Applied Social Studies: Vol. 14: Iss. 1, Article 7.                < https://arrow.dit.ie/cgi/viewcontent.cgi?article=1221&context=ijass > accessed 17 October 2018

[18] Centre for Crime, Justice & Victim Studies, Youth Justice (REPPP Project) (Limerick, 2016) < https://ulsites.ul.ie/ccjvs/youth-justice-reppp-project> accessed 15 October 2018

[19] Commission on the Future of Policing in Ireland, The Future of Policing in Ireland (Report), 2018

[20] ibid 9

[21] Irish Penal Reform Trust, ‘Alternatives to Custody’ (Irish Penal Reform Trust (IPRT), <http://www.iprt.ie/alternatives-to-custody> accessed 13 October 2018

[22] Grainne Ni Aodha, Ireland’s restrictive abortion laws have been criticised in report on women’s health” thejournal.ie, (5 December 2018) < http://www.thejournal.ie/eu-report-womens-health-abortion-3732024-Dec2017/> accessed 16 October 2018

[23] Kevin Warner, “Review of the prison system fails to tackle endemic problems”, (23 October, 2014) < https://www.irishtimes.com/news/crime-and-law/review-of-prison-system-fails-to-tackle-endemic-problems-1.1973202> accessed 17 October 2018

[24] ibid