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Consistency of approach not consistency of outcome is key to sentencing says AG

06 Jun 2019 / law reform Print

Consistency of approach not consistency of outcome is key to sentencing says AG

Attorney General (AG) Séamus Woulfe said last night that there is some public unhappiness, if not disquiet, at sentencing in this country.

However, he said that what is important in sentencing matters is a consistency of approach rather than consistency of outcome.

He also said that some Oireachtas legislation deems that administrative matters should be sent to court for adjudication without enough specific detail being laid out as to how exactly this should happen.

On the balance of rights between accused and complainant in sex offence cases, he said that if the person taking the case is granted anonymity then the accused should also have anonymity.

Speaking at the launch of the Law Reform Commission’s Fifth Programme, at their Hatch Street office in Dublin 2, the AG said there was an interesting continuum in the current programme with the First Programme.

History repeats itself

“In some ways history repeats itself,” he said, pointing to the very first projects areas in the 1970s which included:

  • the hearing of appeals from administrative bodies,
  • recognition of foreign divorces (under conflict of laws),
  • sentencing for criminal matters,
  • and public concern about lack of legal protection for privacy.

“Some of those subjects reappear now in the list of topics in 2019 of areas that we haven’t found the answers to and are still ripe for law reform,” the AG said.

Revising the law of evidence appears again in the Fifth Programme, he said.

The First Programme was drawn up pursuant to Section 4 of the Law Reform Commission Act 1975.

Séamus Woulfe quoted 1973-77 AG Declan Costello, a TD and senior counsel (SC), who told the Dáil that “Governments in a fast-changing and dynamic world should ensure that the laws are kept under constant review and are regularly and systematically reformed.”

The AG continued “On 4 January 1977 saw the then Taoiseach Liam Cosgrave, TD and SC, lay before both Houses of the Oireachtas… the first programme for examination of certain branches of the law with a view to their reform.”

Pace and speed

The First Programme ran from 1977 to 1999 with a broad range of subject matters, while the second ran from 2000-2007. Subsequent programmes became shorter reflecting the pace and speed of the development of the law.

“While the work and remit of the Commission hasn’t reduced, the time in which it has to complete these projects has, and that’s only possible due to the hard work and expertise of the Commissioners and their staff,” the AG said last night.

Project nine of the Law Reform Commission (LRC) Fifth Programme tackles the topic of balancing rights in personal injury cases and will examine whether a cap on damages is constitutionally permissible.

The Fifth Programme will also examine the court test to determine domicile and habitual residence in foreign divorce cases, which was touched on in the recent referendum.

Fixed target

“The Fifth Programme refers to the substance of what that test should be,” the AG said. It also examines the substantive issue of proper provision, post-divorce, and whether that is a “fixed or moving target”.

The importance of public consultation in this process is emphasised in the Fifth Programme foreword, written by LRC President Justice Mary Laffoy, who also spoke at last night’s launch.

The Law Society has welcomed the programme and the LRC’s consideration of proposals it put forward in the areas of:

  • Regulatory framework for adult safeguarding,
  • Structured sentencing,
  • Regulation of detention in garda custody.

In addition, the Law Society’s recent study of the case for divorcereform, will complement and inform the Commission’s goal of examining the issue proper provision after divorce and foreign divorces.

On the Commission proposal for the review and consolidation of the law on sexual offences, the Society is already engaging with the Tom O’Malley/Department of Justice review on the matter.

 

 

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