4. Criminal Law and Procedure

4.1 Suspended Sentences

In 2015, the Commission began work on its project on Suspended Sentences (4th Programme of Law Reform, Project 5). This project examines the principles that courts apply when deciding whether to impose a suspended sentence. Some aspects of the suspended sentence are dealt with in section 99 of the Criminal Justice Act 2006 (as amended). The project builds on the Commission’s previous work in this area, including its analysis of the principles of sentencing contained in its 2013 Report on Mandatory Sentences (LRC 108-2013). The project also complements the work of the Irish Sentencing Information System (ISIS), which is involved (under the auspices of the Board of the Courts Service) in gathering, analysing and disseminating information on sentencing in the State.  The Commission published an Issues Paper on this subject in 2017.  The Issues Paper sought views on a range of issues concerning both the principles that apply to imposing suspended sentences and also the procedures that apply to them.  Specifically, it sought views as to whether the general sentencing principles discussed in the Paper are being applied appropriately in the case of suspended sentences, and whether this area would benefit from the development of further sentencing guidance.  The Commission’s Paper also surveyed the use of suspended sentences concerning 2 corporate offences, namely convictions under competition law and under safety and health law. The Commission's research indicates that all sentences of imprisonment in those cases have been suspended and that no person has been imprisoned to date. Again, the Commission noted that it was seeking the views of interested parties on this. On the question of the procedures for imposing the suspended sentence the Paper noted that a number of important changes have recently been enacted in the Suspended Sentences Act 2017. This was done in response to a High Court decision in 2016 that the activation process for the suspended sentence were unconstitutional. The Paper sought views as to whether further reforms are required in relation to the procedures concerning suspended sentences, including the activation process.

4.2 Sexual offences: consent, knowledge and belief

In 2017 the Commission began work on its project to examine and make recommendations on whether changes should be made to the element of knowledge or belief in the definition of rape in section 2 of the Criminal Law (Rape) Act 1981 as amended, taking into account the jurisprudence in relation to this definition and, in particular the judgment of the Supreme Court in The People (DPP) v O’R [2016] IESC 64. This project arose from a request to the Commission made in April 2017 by the Attorney General, in accordance with section 4(2)(c) of the Law Reform Commission Act 1975.  The Commission published an Issues Paper on this subject in 2018.  The Issues paper sought views on 4 issues relating to the mental element of rape, specifically:

  • whether the current law relating to knowledge or belief should be retained.  If consultees believe that this aspect of the present law on rape should be amended, they are then asked to consider a number of possible reform options.
  • whether an objective or "reasonable belief" element should be added to the definition of rape.  The Commission also asks whether the accused's personal characteristics, such as his decision-making (mental) capacity, could be considered in deciding if this belief in consent was reasonable.
  • whether the law might be reformed so as to make mistaken belief in consent a defence.
  • if there is any merit in the idea of having a separate offence, less serious than rape, to cover a situation where an accused honestly but unreasonablely and mistkanely beleived that the complainant was consenting

The Commission also discusses briefly the separate but related issue of self-induced intoxication, asking if it should be expressly stated in legislation that self-induced intoxication is not a defence to a charge of rape.

 Back to list of current projects