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Academic Paper, 2014
7 Pages, Grade: 61
B. Traditional Approach to Sentencing In Ireland
C. Sentencing Principles
D. A Judges Role In Preventing The Abuse Of Process
E. International Jurisdictions
With no certain change evident within the Irish judicial system in relation to the ability and freedom of how a judge decides upon a sentence in a case, a logical starting point would be to assess the current practices used by judges in their decision making process. Conventionally a judge’s decision in sentencing is based upon the seriousness of the offence and the evidence presented. However to understand this we must first understand the meaning of “sentencing”, “A sentence is the judgement of a court stating the punishment to be imposed on a defendant who has pleaded guilty to a crime”. In law, a sentence forms the final explicit act of a judge-ruled process. Despite the commonly mistaken belief that the jury decides the faith of a defendant, it is the judge of the court that does this. The act of sentencing a criminal consists of a judge deciding what the criminal justice system should do with the guilty defendant. Despite the decision for sentencing being entirely left up to the judge, I do not think Irish judges have too much discretion in sentencing criminal offenders. The aspirations of this essay will be to examine the discretion which Irish judges seem to have when sentencing criminal offenders, and to also examine what diversifications could be made to curtail their exercising of this discretion. To do this accurately I will make a parallel comparison with similar jurisdiction’s such as England and Wales but will also compare it to jurisdictions not so similar such as the US and Australia.
Traditionally, guidance on judicial discretion was taken from the Criminal procedure Act 1967. The purpose of this act was “to establish a new procedure for the preliminary examination of indictable offences and for this and other purposes to amend criminal law and administration”. It has long been understood that the punishment must be in proportion to the gravity of the offence, such was stated by Judge Walsh “It is therefore the duty of the courts to pass what are appropriate sentences in each case having regard to particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal”. “The principle of proportionality” is one which is naturally followed by judges when deciding upon a sentence and is based upon a principle of constitutionality. This was clearly identified by Judge Flood by stating “ The imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced” .It is not out of the ordinary in criminal cases for a judge to utilise his discretion to adjourn the case in order to facilitate a full hearing on the on the question of the sentence, as the mitigating factors which contribute to the victims guilt will essentially shape and form the sentence hearing. These mitigating factors should be considered by the judge only after thinking about the sentence to be imposed in relation to the gravity of the crime. Upon the completion of the analysing the mitigating factors the judge will then use his discretion to hand out the sentence. From the very beginning Irish judges have been given a wide birth in relation to the discretion of their decisions. By going upon a system which takes the circumstances of the offence, the character and the antecedents of the offender into account a judge is essentially given the freedom to decide a sentence on the basis of “inducing the offender to turn from a criminal to an honest life, and indeed the public interest would be best served if the criminal if the criminal could be induced to take the later course”.
The determination of what sentence to impose on an individual is and exercise of judicial power and discretion by the judge. However despite this discretion a judge must decide a sentence based upon the law, not their personal feelings. In considering what sentence would be appropriate the judge mast take into account the gravity of the crime by focusing on the facts on the individual case. This once again means that there must be proportionality between the severity of the sentence and the gravity of the crime. Generally a key indicator of the severity of a crime is the maximum available sentence for said crime. Before a sentence is passed a plea of mitigation is heard, so as to cast the victim in the most favourable light possible. The aim of the plea of mitigation is to make an attempt to reduce the sentence being given to the victim. As a general rule the worst sentence is reserved for the worst of crimes, however this does not prohibit the court from imposing a maximum sentence on a victim. “The Criminal Justice Act 1999 provides that a court shall not be precluded from imposing a maximum sentence is satisfied the exceptional circumstance relating to the event so warrant”. Due to the fact that there are both maximum and minimum sentences which must be imposed in relation to the gravity of the crime, I do not believe that judges have too much discretion when sentencing in criminal trials, as despite the fact that they are the sole party who decides the fate of a plaintiff, they are also given guidelines to abide by. If a judge’s discretion in sentencing a victim was to be curtailed by strict rules then a fair trial could not be held, as the principle of proportionality could not exist.
“In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights of the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure to achieve an improper end”. Within Ireland the courts do not categorize definitively what may amount to abuse of process, as it would only restrict a judges ability to deal with the abuses that come before him, if a definitive set of rules were to be formed a judge would not be able to utilise their own discretion or utilise the principle of proportionality. The jurisdiction of which a person is suing in essentially creates the constitutional right to litigate against another party, however the constitutional right to litigate is not always palpable. Such instances were stated By Murphy J “a balance must be struck between a person’s right of access to the courts and the right of other persons to be protected against an abuse against their rights”. If Irish judges did not have discretion upon the decisions they make their role in preventing the abuse of the judicial system would be one which would not be carried out to its maximum capacity. By litigants abusing the judicial process a fair system within the courts could not be held, however “the onus will always be firmly placed on the party alleging the abuse of process to show that another should be deprived of the constitutional right to litigate”. The conceptual ideology of the abuse of process by withholding a person’s constitutional right to litigate is one which a judge must be able to deal with on a case to case basis. If s judge could not utilise their discretion in such instances, then the court system would be highly unbeneficial as it would favour those who abuse the process and right of litigation.
“It’s the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing”. Criminal Sentencing within similar Jurisdictions such as England and Wales now have a “rigid and robust system of sentence guidelines which the judges must now abide by for cases after the 6th of April 2010”, however in England and Wales the types of sentences which can be imposed on a particular offence are specified by statute. Despite the new system of rigidity within the English and Welsh judicial system, judges still have discretion as to how criminal cases are handled. For a case with no prior guideline’s set out as to how it should be handled “judges are then allowed to draw on experience from previous similar cases”.  “When dealing with an offender the judge must take into account the protection of the public, and the reform and rehabilitation of the offender”.With a similar set of guidelines present in both England and Wales I would disagree with judges having too much discretion, as without the presence of discretion upon making judicial decisions the principle of proportionality would not be able to be enforced efficiently by judges, “the court must not pass a custodial sentence unless it is of the opinion that the offence (or combination of offences) was so serious that neither a fine alone nor a community sentence can be justified". Also similarly to Ireland, there are fixed sentence’s, which must be given such as life imprisonment for more serious crimes such as murder. However in contrast judicial systems such as that of the US must conform to the requirements of the constitution which sets basic mandates while the remainder of the policy is decided by the individual state. The guidelines for criminal sentencing in the US are a product of the “Sentence Reform Act”. Within the US sentencing laws vary within states however, much like Ireland England and Wales, mandatory minimum sentences exist for more serious crimes. In addition to Ireland, England and Wales, the principle of proportionality is also evident in the US, as the eight amendment to the United States Constitution was enacted in order to prevent judges from imposing excessive punishments which are disproportionate to the gravity of the crime committed. “it is safe to affirm that punishments of torture [such as drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution''. “Justice must not only be done, it must also be seen to be done”
In conclusion it is evident that, Irish judges do not have too much discretion when sentencing criminal offenders as if the guidelines were too strict judges could not fairly apply the law to a person under the principle of proportionality or “equality of arms”.  The principle of Equality of arms is very similar to that of proportionality however was defined as “that both in criminal and non-criminal cases ‘everyone who is a party to such proceedings shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at substantial disadvantage vis-à-vis his opponent”. It is clear that without a judge’s ability to utilise their discretion to make decisions which are governed upon the circumstances of that case, the Irish court system would be one which would place either the defendant or the plaintiff at a substantial advantage. If the Irish judge’s discretion were to be curtailed the role of the judge would not be carried out it its full capacity
Desmond Shiels, Abuse of Process Unjust and Improper Conduct of Civil Litigation in Ireland (1st Edn, First Law)
Law Society of Ireland, Criminal Litigation (1st Edn, Oxford University Press)
Dermot Walsh, Criminal Procedure (1st Edn, Thompson Round Hall)
Cameron May, International Criminal Justice A Critical Analysis of Institutions and Procedures (1st Edn, CMP Publishing)
Robert Cryer, An Introduction to International Criminal Law and Procedure (2nd Edn, Cambridge University Press 2010)
Andrew Ashworth, Sentencing and criminal justice (4th Edn, Cambridge University Press 2005)
 Jonathan Law and Elizabeth A. Martin, Oxford Dictionary of Law (7th Edn, Oxford University Press 2014) 454.
 Criminal Procedure Act, 1967
 AG V O’ Driscoll 
 AG V O’ Driscoll 
 People v WC  1 ILRM 321
 Law Society of Ireland, Criminal Litigation (1st Edn, Oxford University Press) 158.
 Criminal Justice Act 1999, s.29.
 Goldsmith V Sperrings  2 AER 566
 Desmond Shiels, Abuse Of Process (1st Edn, First Law) 3
 Desmond Shiels, Abuse Of Process (1st Edn, First Law) 4
 European Convention on Human Rights, Article 6.
 Coroners and Justice Act 2009, s 25(4)
 Coroners and Justice Act 2009
 Criminal Justice Act 2003
 Criminal Justice Act 2003, s 44(12)
 Sentencing Reform Act 1984
 Wilkerson v Utah 99 U.S 130 (1878) 135
 Delcourt v Belgium (1970) 2689/85
 Masha Fedorva, The Principle of Equality of Arms in International Criminal Proceedings (1st Edn. School of Human Rights Research 2012)
 Bulut V Austria 17358/90
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