It is only in recent years that the Irish criminal justice system has begun to appreciate the full extent of our recidivism problem and the ongoing strain it is placing on already limited resources. As a result, there is a dearth of raw data and research on the issue. However, one study, completed by O’Donnell et al. (O’Donnell, I., Palmer, E.P. and Hughes, N., ‘Recidivism in the Republic of Ireland’, (2008) 8(2) Criminology and Criminal Justice,123) found that of the cohort studied, 27.4% of offenders were re-imprisoned within one year of being released, with this rate increasing to 49.3% within four years post-release. Furthermore, it is estimated that a small minority of offenders are responsible for the majority of crime being committed. Such persistent criminal behaviour illuminates the need for more effective sentencing practices in order to combat the current levels of recidivism.
In light of this, any measures taken to reduce crime rates are being focused on this cohort of offenders and Ireland has recently introduced a number of legislative provisions to deal with habitual offenders. Relevant legislation targets drug trafficking offences (Criminal Justice Act 2006, Part 8), sexual offences (Criminal Law (Sexual Offences) Act 2006) and firearm offences (Criminal Justice Act 2007), to name but a few. Under such provisions, a second or subsequent offence will attract a sentencing enhancement. The rationale behind the imposition of increased punitive measures is that it gives formal expression to society’s condemnation of his or her continuing criminal behaviour whilst also acting as a deterrent against future offending.
It is worth noting that many of the provisions which provide for sentencing enhancements by way of mandatory minimum sentences contain a ‘safety-valve’. This feature allows for retention of judicial discretion in instances where there are specific and exceptional circumstances. The existence of such a clause eliminates constitutional challenges while also granting flexibility to the judiciary to exercise their discretion in cases where they consider it would be unjust to impose the mandatory minimum prescribed by the legislature.
Given that there are several pieces of legislation aimed at targeting recidivism, it is not within the remit of this blog post to discuss each of them. Therefore, the focus of this post will be directed towards the most recent legislative provision introduced to deal with repeat offenders, namely the Criminal Justice (Burglary of Dwellings) Act 2015.
Criminal Justice (Burglary of Dwellings) Act 2015
The Minister for Justice and Equality, Frances Fitzgerald, introduced the Bill to the Dáil which was later enacted as the Criminal Justice (Burglary of Dwellings) Act 2015. It came about after statistics released from the Garda Síochána Analysis Service (www.garda.ie/analysis-service) evidenced that 75% of burglaries are committed by 25% of offenders. This coupled with increased lobbying from neighbourhood-watch groups led to a review of how our criminal justice system deals with repeat burglars. The legislation which followed is intended to target those offenders with previous burglary convictions in the hope of reducing the recidivism rate in this area.
It set about achieving this goal by enacting two main provisions. Firstly, section 1 amends section 2 of the Bail Act 1997 by including the existence of, at least two, previous burglary convictions as evidence that the offender is likely to commit further offences of this nature. However, any previous convictions must be coupled with two or more pending charges for burglary. Thus, a judge may now deny bail on the basis that the offender is at risk of carrying out a burglary offence while awaiting prosecution for alleged burglary offences. This amendment is intended to reduce the occurrence of burglaries by targeting that 25% of repeat offenders to which the Garda Síochána Analysis Service statistics refer.
Are Mandatory Consecutive Sentences to become the New Norm?
Additionally, this Act amends the Criminal Justice (Theft and Fraud Offences) Act 2001. Under the new legislation, section 2 stipulates that prison sentences must run consecutively for those convicted of multiple burglary offences within the five years immediately prior to the relevant offence. More specifically, the provision requires that any sentence handed down be imposed consecutively to any sentence of imprisonment for burglary committed within the six months prior to or after the sentenced offence. It is important to note that the aggregate term of imprisonment cannot exceed two years where the case is heard by the District Court. There is no such restriction in the Circuit Court. However, in both courts, the principle of totality will apply.
Retaining Judicial Discretion
Ireland’s sentencing regime primarily operates under an individualised sentencing system with judicial discretion at its forefront. Therefore, it is of no surprise that any legislative measures which interfere with this discretion will be heavily scrutinised.
Despite the amendments of the ‘Burglary Act’, judicial discretion is in fact retained in most instances. Although the Act amends the Bail Act 1997 to include previous burglary convictions as evidence to be considered when making a decision regarding bail, the choice as to whether to grant bail remains at the discretion of the judge.
Continuing the discussion on judicial discretion, the requirement that consecutive sentences be imposed in certain circumstances when sentencing multiple burglary offences does not interfere with the discretion of the sentencing judge to impose a sentence in the first place or the severity of the sentence. They are merely confined in the decision to impose sentences concurrently or consecutively. Nevertheless, this is a significant departure from previous practices.
Commentary – Is the ‘Burglary Act’ a step forward?
This Act is unique in that, unlike other legislation which provides sentencing enhancements for recidivists, this one was enacted to specifically target repeat offenders. For example, although the Criminal Justice Act 2007 punishes more severely for second and subsequent offences, the impetus for its introduction was to tackle gangland crime. Another distinctive feature of this Act is that it does not prescribe mandatory minimum sentences as a means of tackling recidivism. Instead, it approaches recidivism by removing the incentive of having multiple burglary offences taken into consideration and imposing a single concurrent sentence, despite it being known that the offender has committed multiple burglaries. Perhaps, this change in direction stems from the Law Reform Commission’s recommendation to repeal mandatory sentences across a range of offences (Law Reform Commission, Report on Mandatory Sentences, LRC 108-2013).
Prior to the introduction of this Act, there was a tendency for offenders to commit multiple burglaries within a short time frame and subsequently seek to receive a sentence for as few of these as possible while having a greater number of these offences taken into consideration. This, combined with the fact that concurrent sentences were more frequently imposed meant that there was little disincentive from committing one burglary versus multiple burglaries.
The final argument which this blog post will make is that the Act was introduced at a time when the legislators of our country lacked certainty as to their future. It cannot go unnoticed that the Bill was created with a General Election pending, one which has since taken place. Consequently, it can be disputed whether there was a political agenda behind its enactment. Irrespective of the impetus for the legislative provision, it does not detract from its potential to target prolific burglars. However, the brevity in which the Bill was prepared and passed into law lends itself to questions over missed opportunities. Perhaps, if further consideration was given to its creation, an Act with similar provisions could have been produced to target a broader range of offences. In this sense, the Act can be criticised for its simplicity.
Certainly, an overhaul of the law targeting recidivists is required. However, this new legislation is a welcome initiative as it attempts to reduce the incidence of burglaries by thinking beyond mandatory minimum sentences. However, it will take some time to see the true value and future potential of such measures as a means of combating recidivism.
Susan Crean is a 2nd year PhD student in the School of Law, University of Limerick under the co-supervision of Dr. Andrea Ryan and Dr. Margaret Fitzgerald-O’Reilly. She is a member of the Centre for Crime, Justice and Victim Studies.