+(,121/,1(

Citation:
Darragh Kieran Connell, Serving the Community; Lessons
from the UK Experience of Community Orders, 12
Hibernian L.J. 27 (2013)

Content downloaded/printed from HeinOnline

Sun Oct 14 15:45:56 2018

-- Your use of this HeinOnline PDF indicates your

acceptance of HeinOnline's Terms and Conditions
of the license agreement available at
https://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF

to your smartphone or tablet device
 Serving the Community?
Lessons from the UK experience of
Community Orders

DARRAGH KIERAN CONNELLI

"All punishment is mischief, all punishment in itself is evil."

Jeremy Bentham The Principlesof Morals and Legislation [1780]

Introduction
With the imprimatur of current Minister for Justice & Law Reform, Alan
Shatter,' the judicial sentencing power known as the Community Service
Order ("CSO") is experiencing what could be described as a nascent renais-
sance.' Operating in a brave new world ushered in by the Criminal Justice
(Community Service) (Amendment) Act 2011,4 District and Circuit Court
judges have, once again, begun to see the CSO as a meaningful sentencing
option. Aside from its obvious economic value, 5 a CSO can provide an
effective means of diverting offenders from a path of wanton criminality.
Notwithstanding these perceived advantages, Irish courts should be mindful
of the mixed UK experience of Community Orders before embarking on the
wholesale expansion of the Irish CSO regime.
This article first examines the changing legislative landscape in which CSOs
operate before considering the nature of, and difficulties experienced by, the
more sophisticated system of Community Orders operative in the courts of
England and Wales. Finally, it will be argued that the new Irish regime of
mandatory CSO assessments (and the consequent increase in the utilisation
of CSOs) is one which, in light of the UK experience, has the propensity to

BCL(NUI), LL.M(Cantab.), Barrister-at-Law(King's Inns), BTT(BPP), Called to the

Irish Bar and the Bar of England & Wales, pupil barrister at 3 Paper Buildings, Inner
Temple, London.
2 Speech by Mr. Alan Shatter, T.D., Minister for Justice, Equality & Defence in Diil
1ireann during the Criminal Justice (Community Service) (Amendment) (No. 2) Bill
2011 Second Stage Debate on the 7th April 2011. Available at http://www.justice.ie/
en/JELR/Pages/SP11000040[Accessed 3 October 2012]
3 There was a 40% increase in the number of Community Service Orders made between
2010 and 2011 (2,738 in 2011 up from 1,972 in 2010). The ProbationService Annual
Report 2011 (Dublin: Stationery Office, 2012), p. 4 4
4 Criminal Justice (Community Service) (Amendment) Act 2011 (No.24 of 2011)
The 2010 average cost of a Community Service Order was estimated at approximately
E2,200. The average annual cost of imprisonment in 2010 was E65,910. The Probation
Service Annual Report 2011 (Dublin: Stationery Office, 2012), p.2 7
28 DARRAGH KIERAN CONNELL

undermine the integrity of the criminal justice system it is designed to assist.

It will be argued that a structured, well-resourced community service programme
does have an important role to play in diverting offenders from further
offending, but any such system must have proper coherent sentencing parameters
to ensure community service is only afforded to suitable offenders where its
rehabilitative effects will have a clear ascertainable impact.

Legislative Background

The underlying legislation governing the imposition of CSOs is the Criminal

Justice (Community Service) Act 1983,1 perhaps one of the most progressive
pieces of penal reform legislation introduced in this jurisdiction since
the Probation of Offenders Act 1907. The advantages of CSOs and other
non-custodial sentencing options were lauded as necessary alternatives to
imprisonment as far back as 1985 in the highly influential Whitaker
Committee Report7 chaired by the legendary civil servant, Dr T.K. Whitaker.
Indeed, as recently as January 2010, the Irish Penal Reform Trust went even
further in arguing that "[a] political decision must now be made towards the
use of community sanctions as the default penal sanction for less serious
offences and the Government should commit itself to the promotion of
community sanctions throughout the whole criminal justice system as a
replacement for imprisonment."' Against this backdrop of critical support
for the expansive imposition of CSOs, it is necessary to consider the existing
nature of this particular sentence in Irish law.
Effectively, pursuant to the 1983 Act, a court may impose a CSO in respect
of an offender who is over the age of 16 years and has been convicted of a
criminal offence for which a sentence of imprisonment of twelve months or
less would be appropriate.' An important clarification for practitioners is
that the maximum statutory tariff for the offence itself need not be twelve
months imprisonment. Consequently, CSOs may be imposed even in respect
of serious offences provided that the court in question deems the appropriate
sentence one of twelve months or less. In this regard, the corollary UK
sentencing power, the Community Order, has controversially been utilised
as an appropriate sentencing option in respect of violent and/or sexual offences
6 Criminal Justice (Community Service) Act 1983 (No. 23 of 1983)
7 Report of the Committee of Inquiry into the Penal System (Dublin: Stationery Office,
1985)
IPRT Position Paper No.8 - Community Sanctions (January 2010), p.11, available at
http://www.iprt.ie/contents/lS55 [Accessed 9 October 2012]
9 Criminal Justice (Community Service) Act 1983, (No 23 of 1983), s.2(1) but note that the
Fines Act 2010 (No 8 of 2010) has inserted, by way of amendment to s.2(2), an additional
power not yet commenced, to provide for the imposition of a CSO by a court where an
offender "(a) has attained the age of 16 years, and (b) stands convicted of an offence in
respect of which the court has imposed a fine that the offender has failed to pay by the due
date for payment."
 Lessons from the UK experience of Community Orders 29

as well as more typically for those offenders convicted of robbery, theft and
criminal damage.
In Ireland, a CSO requires an offender to perform unpaid work for between
forty and two hundred and forty hours over the course of one year commencing
from the date of the order. This time horizon is subject to a judicial power
of extension pursuant to section 9 of the 1983 Act. While a full exposition
of the nature of the unpaid work required by a CSO is outside the scope of
this article, activities such as graffiti removal, as well as picking up litter,
gardening and other environmental improvements are illustrative of the nature
of an average CSO.10 As considered below, the Irish system is devoid of the
twelve "programme requirements"" which inform the more structured UK
Community Order scheme.
Notably, the court may impose, alongside a CSO, a further penalty for the
same offence such as "the revocation of any licence, the imposition of any
disqualification or endorsement, the forfeiture, confiscation, seizure, restitution
or disposal of any property, or the payment of compensation, costs or
expenses." 2 One such instance of the imposition of a combined compensation
and CSO sentence was the infamous Tim Allen case when, in 2003, District
Court Judge Michael Patwell imposed a sentence of two hundred and forty
hours community service combined with a compensation order for E40,000
in lieu of a nine month prison sentence following a guilty plea to possession
of pornographic material contrary to the terms of the Child Trafficking and
Pornography Act 1998.13 The availability of these types of combined sentences
raises the spectre of a potential conflict with the totality principle; a principle
repeatedly emphasised by the Court of Criminal Appeal 4 as being integral
to the lawfulness of sentencing decisions.
The 1983 Act has recently been substantively revisited in the Criminal
Justice (Community Service) (Amendment) Act 2011 enacted in October
2011. One of the key changes made by this amending legislation is in respect
of section 3 of the 1983 Act. As Byrne notes, "[w]hereas the original s.3
provided that a court may make a community service order, s.3 of the 1983
Act, as amended by the 2011 Act, now provides that a court shall consider
whether to make a community service order."" In effect, the legislation now

1o The ProbationService Annual Report 2011 (Dublin: Stationery Office, 2012), p.1 5
" Criminal Justice Act 2003 (UK), s.177
12 Child Trafficking and Pornography Act 1998 (No 22 of 1998) Criminal Justice (Community

Service) Act 1983, s.3(3)

'3 For further detail, see S. Kilcommins, I. O'Donnell, E. O'Sullivan & B. Vaughan Crime,
Punishment, and the Search for Orderin Ireland (Dublin: Institute of Public Administration,
2004) [Hereinafter Kilcommins et all, p.18 7
14 For example, Finnegan J. in The People (atthe suit of the DPP)v Paul Murray [2012]
IECCA 60 (unreported) at p.62: "The totality principle is really but a sub-set of the
wider proportionality principle. It ensures that sentencing is somewhat more than an
abstract arithmetical exercise by providing that, in the case of multiple offending, the
overall sentence imposed is proportionate to the moral delinquency of the offender."
11 R. Byrne, "Class A to Class E: Are you ready for the Fines Act 2010? - Part II" [2011]
29 I.L.T. pp.288-289
30 DARRAGH KIERAN CONNELL

provides for the consideration of a CSO as the mandatory "first resort sentencing
option in addition to fines".16 Additionally, in the event that a court is minded
to impose a CSO, it is now required to obtain and consider an assessment
report prepared and furnished by the Probation Service within twenty-eight
days of the request being made.' 7 The propriety of these new changes and
the desirability of an expansion in the use of CSOs will be considered below.

Once More unto the Breach"

Regrettably, a CSO, like any court order, is susceptible to breach by the party
against whom the order was first imposed. Thankfully, the 1983 Act, as
amended, countenances such a vista in sections 7 and 8 which provide the
courts with robust powers to deal with those found to be in flagrante delicto,
but as we shall see, opportunities for both abuse and inflexibility abound
under these enforcement mechanisms.
First, it is necessary to consider when under Irish law a breach is said to
have occurred? Thus, according to section 7, an offender is said to be in
breach of a CSO if he or she fails to, inter alia, report to a relevant officer as
directed from time to time by or on behalf of the Director of the Probation
Service; perform satisfactorily for the number of hours specified in the order
such work at such times as he may be directed by or on behalf of the relevant
officer to whom he is required to report; or notify the officer to whom he is
required to report of any change of address.
While the above three circumstances are ostensibly clear for practical
purposes, the inherent subjectivity of the second ground is of considerable
concern when one considers that under section 7(4) "[a]n offender who fails,
without reasonable excuse, to comply with a requirement of subsection (1)
(the three circumstances set out above) shall be guilty of an offence and,
without prejudice to the continuance in force of the community service order,
shall be liable on summary conviction to a fine not exceeding £300."
In essence, to ground a standalone criminal offence on the basis that a
"relevant officer" considers that an offender has failed to perform unpaid
work satisfactorilyfor the number of hours specified in a CSO affords the
opportunity for a capricious work supervisor to abuse their power. While
the propensity for miscarriages of justice exists across the criminal justice
system, it is submitted that additional vigilance is required in respect of the
section 7(4) offence given the fact that it is the relevant officer themselves
who, pursuant to the newly inserted section 7(5), may prosecute the offence.
Thus, in a true Kafkaesque distortion, the chief witness and prosecutor of a
CSO breach will likely be the same person. The same difficulties inherent in
16Ibid.
17Criminal Justice (Community Service) Act 1983 s.3(1B), as inserted by the Criminal
Justice (Community Service) Amendment Act 2011
" Shakespeare, Henry V, Act 3, Scene I
 Lessons from the UK experience of Community Orders 31

allowing arresting Gardai prosecute their own District Court cases" apply
mutatis mutandis in respect of relevant officers prosecuting CSO breaches.
Moreover, concern about this particular prosecutorial innovation, introduced
by section 2(c) of the Criminal Justice (Community Service) (Amendment)
Act 2011, is further aggravated by the amended, broader definition of "relevant
officer" to include any person who has been assigned by the Director of the
Probation Service the responsibility to discharge functions under the 1983
Act, as amended. Evidently the concept of a "relevant officer" has taken on
a more fluid definition within the CSO legislative structure beyond the traditional
probation officer.20 Minister Shatter justified the amended definition of "relevant
officer" as necessary for the "reduction in any unnecessary administrative
burden on probation officers" 2 1 by allowing community service supervisors
or members of the administrative staff of the Probation Service to carry out
functions in respect of community service. Nevertheless, the expansion of
prosecutorial duties to a vague group of "relevant officers", designated as
such solely by the delegation of authority by the Director of the Probation
Service, and who, unlike solicitors and barristers 22 are devoid of any ethical
code of practice governing conduct as an advocate in court, is troubling in
a constitutional democracy committed to due process of law. 23
An alternative penalty for a section 7(4) offence is provided by section 8
of the 1983 Act. Effectively, section 8 empowers a court, having convicted
the offender of a proven CSO breach, to either revoke the CSO or revoke it
and deal with the offender for the offence in respect of which the CSO was
originally made "in any manner in which he could have been dealt with for
that offence if the order had not been made".
There are a number of limitations inherent in the enforcement mechanism
set down in sections 7 and 8 of the 1983 Act. Principally, unlike the corollary
UK Community Order enforcement procedure, there is no mandatory first
warning in advance of court proceedings pursuant to a breach. Thus, in the
UK, in the event of a breach of a Community Order, the supervising probation
officer is required to provide a written warning to the offender.2 4 Such a
'9 P. Dwyer, "The Garda As Prosecuting Advocate In the District Court" [1991] 9 I.L.T.
89-91
20 Under the original 1983 Act, "relevant officer" was defined as "a probation and welfare
officer discharging functions under this Act."
21 Speech by Mr. Alan Shatter, T.D., Minister for Justice, Equality & Defence in Diil

1ireann during the Criminal Justice (Community Service) (Amendment) (No. 2) Bill
2011 Second Stage Debate on the 7th April, 2011 available at http://www.justice.ie/
en/JELR/Pages/SP11000040 [Accessed 3 October 2012]
22 See The Code of Conduct of the IncorporatedLaw Society of Ireland and The Code
of Conduct for the Bar of Ireland respectively.
23 See Article 38.1, Bunreacht na hEireannand the principles of constitutional justice
enunciated in Re Haughey [1971] 1 I.R. 217
24 Paragraph 5, Part 2, Schedule 8 of the UK Criminal Justice Act 2003, if the responsible
officer is of the opinion that the offender has failed without reasonable excuse to
comply with any of the requirements of a community order, the officer must give a
warning describing the circumstances of the failure, stating that the failure is unacceptable,
32 DARRAGH KIERAN CONNELL

warning has two advantages. Firstly, it provides the offender with a meaningful
opportunity to redress any behaviour constituting a breach (e.g. lateness,
tardy work performance etc.) without recourse to the court. Secondly, it acts
as a release valve during the life of a Community Order whereby the probation
officer may address slight breaches without commencing a prosecution. Over
the course of the duration of any form of community service lasting up to
two hundred and forty hours it is perhaps inevitable, given the criminal profile
of the persons subject to community service, that there will be one or two
instances of unsatisfactory work conduct. Therefore the first warning mechanism
provides a proactive probation officer an important option before escalating
a breach into a full prosecution while equally hindering a capricious supervisor
from commencing a prosecution for a minor breach of the terms of the
community service.
A second limitation in the Irish CSO enforcement model is that the legislation
provides no power for a court to simply disregard a breach in light of the
extent to which the community service has already been substantially performed.
A hypothetical scenario perhaps illustrates this problem most effectively. If
a certain offender is subject to a two hundred and forty hour CSO and
performs two hundred and thirty seven hours very satisfactorily, but decides
to finish early on the final day of his community order, without reasonable
cause, then, under the terms of the legislation, he will be punished under
section 7(4) in the same manner as someone who has failed to turn up for a
single hour of his community sentence.
Critically, the UK legislation addresses the above concern by expressly
providing that a magistrates' court, in dealing with a breach, must take into
account the extent to which the offender has complied with the requirements
of the Community Order.25 The Irish legislation, in contrast, acts as a regressive
penal straight jacket in failing to afford judges similar flexible powers to
disregard minor breaches or even a normal breach in circumstances where
there has been substantial compliance by the offender with the terms and
overarching purpose of the CSO.

UK Community Orders2 6

Having considered the nature of the Irish community service regime, it is

useful, in light of the Irish penal reform community's enthusiasm for expanding
the use of CSOs, to reflect on the more expansive model operative in the UK.
In this regard, non-custodial sentences in England and Wales experienced a

and informing the offender that if within the next 12 months he again fails to comply
with any requirement of the order, he will be brought back before the court.
25 Paragraph 9(2), Part 2, Schedule 8, Criminal Justice Act 2003 (UK)
26 For general background, see Blackstone's Criminal Practice 2012, Section E, Part 8:
Community Orders under the Criminal Justice Act 2003 (UK)
 Lessons from the UK experience of Community Orders 33

"quiet revolution"2 7 on April 4th, 2005 when the generic Community Order
was introduced to replace, inter alia, the probation order, the community
rehabilitation order and the community service order. The new Community
Order, replete with a suite of twelve potential requirements, was designed to
toughen up community penalties, perhaps echoing the then New Labour
Government's mantra of being "tough on crime and tough on the causes of
crime". 28
In any event, Community Orders have experienced exponential growth
across the UK criminal justice system. As Mair notes, "[b]etween 2006
(the first full year of operation for the new sentences) and 2009, use of the
Community Order increased by 9.8 per cent." 29 In total he estimates that,
in 2009, approximately 122,796 Community Orders were commenced.3 0
Indeed, Community Orders now represent the default sentence imposed in
England and Wales.' While in this respect the Utopia 2 advocated by the
Irish Penal Reform Trust has been realised by our closest common law
neighbours, it will be argued that this sentencing vista is more accurately
described as Paradise Lost.3
Returning first to the legislative underpinnings of the Community Order,
section 147 of the UK Criminal Justice Act 2003 allows for such an order to
be imposed on an offender aged 18 or over in respect of any offence committed
on or after 4 April 2005 save for an offence where the sentence is fixed by
law (murder) or where the offender satisfies the requirements for the imposition
of a dangerous offender sentence.3 4 Separate Youth Rehabilitation Orders
are imposed on offenders under the age of 18 pursuant to the UK's Criminal
Justice and Immigration Act 2008.
In contrast to the Irish CSO regime, a Community Order contains two or
more specific requirements imposed by the court. The twelve potential
requirements are delineated in section 177 of the UK 2003 Act and range
from a curfew requirement" to a drug36 or alcohol treatment 7 requirement.
Invariably electronic tagging will be attached to requirements requiring an

27 G. Mair, "Trends in the use of the community order and the suspended sentence order"
[2012] Arch. Rev. 4, p.6
28 "We will be tough on crime and tough on the causes of crime, and halve the time it
takes persistent juvenile offenders to come to court." Labour Party General Election
Manifesto 1997, p. 6
29 G. Muir, supra note 27, p. 7
30 Ibid.
31 R. Kaye, "Fitting the Crime: Mending Community Sentences" Policy Exchange, November
2010, p.2 3 available at http://www.policyexchange.org.uk/publications/category/item/
fitting-the-crime-reforming-community-sentences-2?category-id=24[Accessed 10
October 2012]
32 See generally T. More, Utopia (1516)
3 See generally J. Milton, ParadiseLost (1668)
3 Criminal Justice Act 2003 (UK), s.225(2) or s.226(2)
3 Criminal Justice Act 2003 (UK), s.104
36 Criminal Justice Act 2003 (UK), s.209
17 Criminal Justice Act 2003 (UK), s.209
34 DARRAGH KIERAN CONNELL

offender to be present at a specified place during certain hours of the day.

Moreover, the Community Order will normally include an unpaid work
requirement, an activity requirement or a programme requirement, all of
which entail structured, focused activities so as to maximise the restorative
and rehabilitative effects of the sentence.
In order to enhance the efficacy and consistency of community service
duties, the Criminal Justice Act 2003 (UK) sets down very precise limits on
the nature of activities permissible within the ambit of a given requirement.
For example, in respect of a curfew requirement, which requires an offender
to remain at a place specified by the court for certain periods of time, section
204(2) of the 2003 Act (UK) states that these periods of time must not be
less than two hours and not more than 12 hours in any given day and in any
event, a curfew requirement within a Community Order must not last for
more than six months from the day on which it is made." Before attaching
a curfew requirement, the court is required to consider information about
the place proposed to be specified in the order, including information as to
the attitude of persons likely to be affected by the enforced presence there of
the offender. Equally, where the court makes a community sentence which
includes a curfew requirement, it must normally also impose an electronic
monitoring requirement unless the court considers it inappropriate to do so. 3 1
This detailed approach to community service requirements has the distinct
advantage of enabling authorities to easily prove when an offender has breached
the terms of his/her Community Order.
Undoubtedly, the imposition of a Community Order places more restrictions
on an offender's daily life than an Irish CSO; however, it is important to note
that the English legislation expressly ensures that any requirements attached
to a Community Order do not conflict with an offender's work, education or
religious beliefs. 4 0 A further protection, mirrored in the Irish legislation, 4 1 is
that whenever a court is considering whether to impose a community sentence,
and what restrictions to put on the offender's liberty as part of that sentence,
the court must take into account all the information available to it, generally
by means of a pre-sentence report. 42 Given the detailed information and specialist
advice contained in pre-sentence reports, it would be unusual for a court to
impose a community sentence without first considering such a report.
Finally, two further, but important, conceptual differences exist between
the UK Community Order and its Irish cousin, the CSO. First, a Community
Order simpliciter does not require the consent of the offender before it is
imposed by the relevant sentencing court. Consent acts as a sine qua non
only for those programme requirements which truly require the full commitment

38 Criminal Justice Act 2003 (UK), s.204(3)

3 Criminal Justice Act 2003 (UK), s.177(3)
40 Criminal Justice Act 2003 (UK), s.217
41 Criminal justice (Community Service) Act 1983, s.3(1B), as inserted by the Criminal
Justice (Community Service) Amendment Act 2011
42 Criminal justice Act 2003 (UK), s.156
 Lessons from the UK experience of Community Orders 35

of the offender, namely requirements to attend drug rehabilitation, alcohol

treatment and mental health treatment. In Ireland, there is a statutory
requirement for the court to obtain the consent of the offender before a
CSO is imposed 43 irrespective of what that CSO may entail even though,
due to resourcing issues, it will be unlikely to specify any of the three invasive
rehabilitative treatments where consent is required in the UK.
It is submitted that it is conceptually incoherent for a court's community
service sentencing powers to be fully dependent on offender consent especially
in circumstances where the likely nature of a CSO will involve basic unpaid
work activities such as graffiti removal. To the knowledge of this author, no
other judicial sentencing power requires the consent of an offender. For
example, it would be ludicrous to require consent to record a sex offenders
name on the Sex Offenders Register or to require a murderer's consent to
imprisonment for life. Indeed, when one examines the circumstances in which
an offender's consent arises in the criminal justice process, such consent is
generally triggered at a point in the process prior to conviction where the
presumption of innocence is still operative such as where the constitutional
right to trial by jury is engaged." There is no constitutional right, entitlement
or privilege to refrain from complying with a lawful court order to carry out
unpaid work having been found guilty of a criminal offence.
The primacy of consent in the Irish CSO model is even more egregious
when one considers the second key conceptual difference with the UK Community
Order system, namely the threshold whereby a community service sentence
is justified. In the UK, the threshold for imprisonment is greater than the
threshold required for the imposition of a Community Order.46 Therefore,
in accordance with the legislative landscape, an English court is not empowered
to impose a Community Order in lieu of imprisonment save in an instance
where, in the opinion of the court, mitigating factors, such as a guilty plea,
reduce the sentence below the so-called "custody" threshold. This appears
to be a justifiable legislative protection to prevent the imposition of community
service in circumstances where an offence warrants a term of imprisonment.
In the UK, this protection is more honoured in the breach than the observance,
but, nevertheless, its existence is an important bulwark against the erosion
of the sentencing principle that serious offences crossing the custody threshold
should be punished with commensurate terms of imprisonment so as to satisfy
the overarching penal purposes of punishment, deterrence and rehabilitation. 47
43 Criminal justice (Community Service) Act 1983, s.4(1)(b), as amended.
44 Sex Offenders Act 2001 (No. 18 of 2001), as amended.
45 J. Hamilton, "The Summary Trial of Indictable Offences", [2004] Judicial Studies
Institute Journal 154, p.161
46 Criminal Justice Act 2003 (UK), s.148(1), provides that "A court must not pass a
community sentence on an offender unless it is of the opinion that the offence, or the
combination of the offence and one or more offences associated with it, was serious
enough to warrant such a sentence."
4 F. McAuley & J.P. McCutcheon, CriminalLiability (Dublin: Roundhall, 2000), pp.98-
106
36 DARRAGH KIERAN CONNELL

The Irish CSO regime has a very different conceptual starting point than
its UK counterpart insofar as community service in Ireland is an express
legislative alternative to imprisonment. Indeed, per the terms of section 3(1)
(a) of the Criminal Justice (Community Service) Act 1983, as amended, a
CSO may only be imposed "[w]here a court, by or before which an offender
stands convicted, is of opinion that the appropriate sentence in respect of the
offence of which the offender is convicted would, but for this Act, be one of
imprisonment for a period of 12 months or less". While the Fines Act 2010
will eventually broaden the scope of section 3 to allow for a CSO to be
imposed in circumstances where a convicted person is in default of a fine,48
the overriding conceptual principle, inserted by section 3 of the Criminal
Justice (Community Service) (Amendment) Act 2011, is that a CSO represents
a direct alternative to imprisonment. Consequently, in order for a court to
impose a CSO, the offence in question must have passed the custody threshold.
It is submitted that eliding the threshold for community service with the
threshold for imprisonment is wholly improper. There are two important
considerations raised by this anomaly. First, community service in Ireland
cannot be legitimately utilised to divert first time, minor offenders-say those
found guilty of shoplifting-from a path of more serious criminality since a
first time offender found guilty of a minor offence is highly unlikely to pass
the custody threshold. Secondly, the legislation empowers the courts to sentence
a more serious offender to community service in an instance where their
offence merits a period of incarceration albeit one of less than twelve months
duration. The failure to impose a sentence of imprisonment where one is
merited can undermine public trust and confidence in the criminal justice
system. This was illustrated by the public furore caused by the imposition of
a CSO in lieu of nine months imprisonment in the Tim Allen case. 49
Ultimately, it is submitted that it is preferable for community service and
imprisonment to operate as part of an ascending hierarchical sentencing
structure thereby avoiding a situation where a serious offence meriting
punishment by imprisonment is disposed of using a CSO. This reflects the
reality that a sentence of community service is of lesser severity than one of
imprisonment. It is therefore submitted that community service should represent
the principal non-custodial method of dealing with suitable offenders, rather
than a direct alternative to a custodial sentence especially in circumstances
where the custody threshold is found to have been crossed.

Assessing UK Community Orders

Notwithstanding the more structured and coherent legislative framework in

which Community Orders operate, there have been a series of concerns raised

48 Criminal Justice (Community Service) Act 1983, s.3(1A) inserted by s.18(1)(c)(i) and
(ii) of the Fines Act 2010
49 Kilcommins et al, supra note 12
 Lessons from the UK experience of Community Orders 37

about the efficacy of the UK system of community-based sentences. Indeed

a Policy Exchange report in November 2010 referred to Community Orders
as "the weak link in the sentencing chain."s0 This perception has been
accentuated by recent media coverage highlighting the regrettably high level
of recidivism amongst those subject to Community Orders."
As Mair expertly charts, 5 2 Community Orders experience a myriad of
difficulties such as: the scarcity of resources; a lack of creativity and innovation
in using the flexibility of the orders; uncertainty about how specific programme
requirements are monitored; and the existence of lengthy waiting lists. While
these problems are not unique to the UK, the fact that the Community Order
is the most common sentence imposed on those convicted of a criminal offence
in the UK means that the inadequate functioning of this sentencing power
has profound effects on the efficacy of the British criminal justice system as
a whole.
Turning first to the trajectory of Community Orders in the UK, it is clear
that the pressure of budget cuts coupled with plans to reduce the prison
population (partly by diverting offenders from short-term prison sentences)
is "likely to mean that community sentences will play an even bigger role in
the criminal justice system in the years ahead." 5 Thus, the rationale for
Community Orders, at least from central government's viewpoint, has
overwhelmingly been an economic one. The resultant legislative bias towards
the imposition of Community Orders often means that the order is utilised
inappropriately such that it is "applied too late and to too many serial offenders
to work as a rehabilitative disposal."" According to the UK Probation Service,
their role increasingly involves "supervising serial offenders who have the
potential to cause considerable public harm.""
Since community service acts predominantly as a rehabilitative sentencing
option, a key metric by which the imposition of approximately 122,796
Community Orders 6 should be judged is the rate of re-offending. While
statistics are sparse in this respect, the British Ministry of Justice using a
statistical model estimated that adult offenders given a community sentence
in the first quarter of 2009 had a predicted reconviction rate of 36.3% such
that those offenders would commit a total of 30,132 subsequent crimes in
the year following the imposition of a Community Order.17

so R. Kaye, "Fitting the Crime: Reforming Community Sentences" Policy Exchange,

November 2010 available at http://www.policyexchange.org.uk/publications/category/
item/fitting-the-crime-reforming-community-sentences-2?categoryid=24 [Accessed 26
May 2012]
51 BBC News, 21 August 2012, "Community Service Criminals reoffend 400 times a week"
available at http://www.bbc.co.uk/ews/uk-19328639 [Accessed 2 October 2012]
52 G. Mair, "Trends in the use of the community order and the suspended sentence order"
[2012] Arch. Rev. 4, pp. 7 - 9
5 R. Kaye, supra note 50
54 Ibid.
1 National Probation Service, A Century of Cutting Crime (2007), p. 1 1
56 G. Mair, supra note 52
5 Ministry of Justice, Reoffending of adults: results from the 2009 cohort, (published
38 DARRAGH KIERAN CONNELL

This recidivistic trend is particularly worrying since the existence of a

previous Community Order breach is no bar to the imposition of a further
Community Order for the commission of a subsequent unrelated offence.
The abiding vista of a revolving door is thus not necessarily a fanciful tabloid
characterisation of community service in the UK.
A second important consideration in assessing the efficacy of community
service is public confidence in the integrity of the sentences imposed by the
courts. While clearly justice, as opposed to the public perception of justice,
should be the overriding guide to decisions taken within the criminal justice
system, it is important in any civilised democracy that the rule of law is both
acknowledged and respected by the broad populace.ss
In this crucial respect, the English experience of Community Orders is
particularly instructive since the overall view of the British public to community
sentences is strongly negative. According to a study carried out by Policy
Exchange," more than a third of those surveyed (38%) think the best phrase
to describe Community Orders is "a soft option", followed by a fifth of
respondents (22%) who thought these orders are "weak and undemanding".
Notably, this scepticism was echoed in a 2008 survey of magistrates by the
UK Probation Service, which found that almost 50% of those magistrates
surveyed agreed that community sentences were a 'soft option.'o
Given the fact that the Community Order is the most common sentencing
power utilised in the UK, the lack of confidence in its efficacy amongst the
general public is highly damaging to public confidence in the criminal justice
system as a whole. It is submitted that such levels of public dissatisfaction
with community service as a meaningful sentencing option would be
substantively mirrored in this jurisdiction in the event that the CSO became
the most utilised sentencing power in Irish criminal courts.

England's Difficulty is Ireland's Opportunity?

In addition to the UK difficulties outlined above, there are three domestic

issues that militate against the increased utilisation of CSOs in this jurisdiction.

Resources

Inadequate resourcing has long been a complaint of the Irish Probation Service,
which is already overstretched and underfunded. The Criminal Justice

March 2011) Table A5, p.3 2 available at http:/www.justice.gov.uk/downloads/statistics/

mojstats/adult-reoffending-statistics-09.pdf[Accessed 5 October 2012]
8 See generally, T. Bingham, The Rule of Law (London: Penguin Group, 2011) and B.
Tamanaha, On the Rule of Law: History,Politics and Theory (Cambridge: Cambridge
University Press, 2004)
9 R. Kaye, supra note 50, p. 3 9
60 Ibid.
 Lessons from the UK experience of Community Orders 39

(Community Service) Amendment Act, 2011 is yet another piece of criminal

justice legislation which manifestly fails to take account of logistics and costs.
While community service is an appreciably less expensive means of punishment
than incarceration," it is critically important that the Probation Service is
afforded the necessary funding and personnel to organise and supervise
meaningful offender-specific community service.
Minister Shatter was recently questioned on this precise issue of CSO-
related resources in Diil tireann and gave the following response: "[tihe
Probation Service has restructured the delivery of Community Service nationally
under the governance of a dedicated Community Service Unit. Besides the 9
dedicated administrative and probation staff, there are 78 Probation Officers
working nationally with a range of duties including community service. "62
Clearly, when one compares this figure with the 3,488 staff currently employed
by the Irish prison service,'6 it is evident that if the Irish courts are to continue
the trend of substantively increasing the use of CSOs, a major recruitment
drive is required to ensure the Probation Service can adequately perform the
necessary supervisory role inherent in the imposition of any CSO.

Structure

In comparison with the system of Community Orders operative in the UK,

the existing Irish CSO regime is inadequately structured. There is, therefore,
no Irish equivalent of the twelve requirements attached to a Community
Order. This unstructured approach has a number of repercussions for the
efficacy of community service as a means of rehabilitation. Thus in the absence
of specific parameters, it is problematic to assess when a CSO has in fact
been breached. A more structured system would also assist in eliminating the
regional inconsistencies that currently persist in respect of the imposition of
CSOs. For example, the Probation Service's Annual Report 2011 reveals that
offenders in Monaghan and Louth appear to be six times more likely to be
subject to a CSO than those in Kerry and Wicklow, suggesting that major
geographical inconsistencies remain in relation to this form of sentencing.
Unlike Community Orders, CSOs in this jurisdiction operate within a
packed field of non-custodial sentencing options. Probation orders, conditional
discharges, drug treatment court programmes, fines and compensation orders
all offer interrelated and overlapping sentencing outcomes. Evidently, the
opportunity for synergies by streamlining the complex web of non-custodial
sentences is manifest. While the Criminal Justice (Community Service)

61 IPRT Position Paper No.8, supra note 8, p.5

62 DAii ireann Debate on Community Service Orders, Tuesday 17th of July, 2012
7/00420.asp [Accessed 6 October
available at http://debates.oireachtas.ie/dail/2012/07/1
2012]
63 Irish Prison Service Annual Report 2011 at p.6 available at http://www.irishprisons.
ie/images/pdflannualreportlI.pdf [Accessed 9 October 2012]
40 DARRAGH KIERAN CONNELL

(Amendment) Act 2011 has elevated the CSO to a mandatory first resort
sentencing option64 alongside fines, it is submitted that the abolition of the
myriad of other non-custodial sentencing powers in favour of a more structured
CSO would be a laudable act of legislative reconciliation.

Unsuitability

Mandatory consideration of community service as an option when sentencing

any person convicted of an offence where the circumstances merit a punishment
of up to twelve months imprisonment overlooks the fact that community
service may be wholly inappropriate where the custody threshold has been
crossed. In essence, automatically eliding the gravity of an offence with
suitability for community service necessarily fails to take account of the fact
that a reasonable proportion of offenders may require penal punishment even
in respect of a minor offence where the circumstances of its commission or
an offender's criminal background are such as to cross the custody threshold.
Moreover, community punishment is equally unlikely to address deep-
seated causes of crime such as drugs, alcohol or other substance abuse. Evidence
for this viewpoint is gleaned from the UK experience, considered above,
where a substantial proportion of offenders either commit an offence during
the life of a Community Order or breach one or more of the requirements
imposed as part of a Community Order package. The Irish Penal Reform
Trust correctly states that CSOs "should not be seen as a way of dealing with
complex social problems, such as social exclusion, addiction and mental
health problems. Systems of assistance should operate in the State to keep
individuals away from the criminal justice system to the greatest extent possible,
including prevention and early intervention mechanisms such as support for
parents, communities and appropriate mental health services." 6 s
Of course, there is no silver bullet to prevent crime. The CSO is an important
option available to the courts to attempt to divert a suitable offender away
from a path of criminality. However, the regrettable reality in this jurisdiction
is that many suitable offenders are, at present, excluded from the reach of
community service. This is because the legislative threshold for the imposition
of a CSO is the same as the custody threshold, provided the period of
imprisonment is less than twelve months. It is submitted that the hierarchical
sentencing structure present in the UK is the correct and preferable conceptual
approach whereby community service is not considered a direct alternative
to imprisonment, but rather as a serious and meaningful intervention in order
to avert the subsequent commission of a crime requiring imprisonment.
Moreover, even in an instance where CSOs were imposed only in respect
of suitable offenders convicted of minor criminal offences, without a history
of dealings with An Garda Siochina, the requirement for offender consent
6 Criminal Justice (Community Service) Act 1983, s.3 as amended
" IPRT Position Paper No.8, supra note 7, p.2
 Lessons from the UK experience of Community Orders 41

to a CSO is a significant impediment to enabling the courts to engage in

proactive, non-custodial, community-based intervention. Post-conviction
offender consent is anathema to the sentencing landscape in this jurisdiction
and, thus, has no proper place in the decision to impose a CSO, save in an
unlikely instance where a CSO requires invasive procedures such as drug
testing.

Conclusion

As Professor Tom O'Malley powerfully posits,

sentencing ... is not an area of law susceptible to absolutes. It is essentially

an expression of values. In a jurisdiction which claims to be guided by,
among other values, the dignity and freedom of the individual, a sustained
effort at achieving the maximum fairness and humanity in sentencing
is not just a virtue, it is a necessity. 6

Adopting this classical liberal construct, the concept of a CSO is not merely
an economically expedient sentencing device, but also represents a fundamental
belief that sentencing is not defined solely in terms of imprisonment. Ultimately,
the nature of community service is profound evidence that our modern criminal
justice system is equipped with an important, functional capacity for compassion,
empathy and restitution in the case of suitable offenders. It is submitted that
this final clarification is effectively one of several lacunae in the current CSO
framework.
In essence, the full panoply of sentencing options should be available to
the judiciary when dealing with a person convicted of a criminal offence,
subject to the specific offence's statutory maximum penalty. To weight the
system in a manner which provides community service as the pre-eminent,
mandatory option for any person convicted of an offence meriting a term of
imprisonment of twelve months or less ignores a number of realities, such
as: the underfunded nature of the Irish probation service; the unstructured
nature of community service in this jurisdiction; and the profound unsuitability
of certain offenders for community service.
CSOs do have a place in the armoury of a sentencing judge. However, the
argument made in this article is that there is an urgent need to reform the
current structure of community service in this jurisdiction to meet the exigencies
of modern times and maximise the restorative effect of such a sentence. The
UK sentencing power known as the Community Order provides a useful
touchstone for what a structured, conceptually coherent CSO should resemble,
replete with multiple requirements offering substantial benefits in respect of
meaningful intervention, supervision and rehabilitation.

66 T. O'Malley, "Irish Sentencing Reform" [1988] 6 I.L.T. 116

42 DARRAGH KIERAN CONNELL

Nevertheless, it is submitted that the route adopted by the UK courts in

transforming the Community Order into the most common sentencing option
in the land is not a path that the Irish courts should tread. Structured community
service can pay dividends in diverting suitable offenders towards more socially
beneficial pursuits than a life of crime, but when such a sentence is repeatedly
extended to a huge number of unsuitable offenders, it has the real propensity
to undermine the criminal justice system it is designed to assist by eroding
public confidence in the courts and precipitating increased levels of re-offending.
Let us cherish community service not as the panacea of all criminal ills, but
rather as a strong rehabilitative force for good to be utilised only in appropriate
cases.