Category: Legal (Page 3 of 4)

Facts and Figures

21st July 2010 / Abigail / 0 Comments

The Courts Service today released their Annual Report for 2009. As usual it’s always an interesting read for those of us who work down there. Apart from seeing in black and white how busy it actually was it’s interesting to put things in some kind of context, to see the breakdown of what actually happened in cool columns of statistics rather than the blur of day to day reporting.

It came as no surprise that murders were at their highest level in eight years. Last year was a pretty hectic one. 53 murders were sent to the Central Criminal Court in 2009 of which 49 were dealt with. There were 15 guilty pleas leaving 31 cases to go to trial. Of those 31, three defendants were found not guilty by reason of insanity, one was acquitted and the rest were convicted – which rather puts the lie to the assumption that the majority of murder trials end in acquittal, certainly not my experience.

There were 18 convictions of murder and 22 convictions for other offences, including manslaughter. If those figures don’t seem to add up that would be because the not guilty by reason of insanity verdicts would still result in some form of detention, usually to the Central Mental Hospital in Dundrum.

The 18 murder convictions all received the mandatory life sentence as did one of the manslaughter verdicts (Ronald Dunbar, who was convicted of the killing of Sligo teenager Melissa Mahon – his appeal is due to be heard soon.) There were another ten sentences of ten years or more.

Looking over the trials I covered last year those figures mean a lot of trials that went under the radar. For every David Bourke, Ronnie Dunbar or Gerald Barry there many more trials that didn’t peak the media attention and were heard without the fanfare that the high profile trials get. I’ve written before about the trials that go uncommented. I know there’s been a lot of criticism in recent years of the level of press attention that turns certain murder trials into cause celebres but the flip side of that is that those that lose their lives get their stories told. I couldn’t list off the names of the defendants in the trials I didn’t cover, let alone the victims.

The only type of criminal trial that was down in numbers was rape down 37% from the 2008 figure of 78. Before you get excited that’s not as positive as it sounds. There were still 52 cases in front of the courts. 18 ended with guilty pleas but 25 went forward to trial. Of the 21 sentences imposed there were 3 life sentences, 5 over 12 years and the rest between 5 and 12 years.

I’ve written at length here in the past about the low sentencing for sex crimes in this country and these figures bear that out. Rape isn’t an offence that has an inbuilt lesser charge like the majority of murder trials. You are either guilty or you’re not. To give someone convicted of rape a mere five years is ridiculously lenient. I’ve covered a lot of rape trials in the past and I’m well aware that there are different degrees of aggression involved but rape is rape.

Of the life sentences given last year, two of them were to the same person, Gerald Barry. He had already been convicted of the brutal murder of Swiss student Manuela Riedo in Galway and was later sentenced on two counts of rape for his hauntingly similar attack on a French student only a few short weeks before he killed Manuela. I was at that sentencing in Galway. Judge Paul Carney told Barry that he had no hesitation giving him life sentences on both counts and expressed the view that for someone like him the carrot of the automatic quarter off his sentence that every prisoner receives was a waste of time.

But this means that only one other rapist was given a life sentence, the maximum any of the others received was 12 years. Life is the maximum sentence that can be given for rape but based on these figures you’d pretty much have to go on to kill to be given it. But I digress.

In the Circuit Court the bulk of the cases were theft and robbery. Up by 28% since 2008, there were over 1500 dealt with. The next largest category was assault, up 5% to 1100, followed by drugs offences, approaching the 1000 mark and up by a depressing 23%. The most shocking jump is the rise in child abuse and child trafficking offences, up from 10 in 2008 to 397 last year, although this leap was due to just two cases each involving over 180 individual offences. However it was only earlier this month that an international report slammed Ireland for it’s record combating child trafficking.

Apart from the crime figures, the main focus of press attention on the report has been concerning the massive increase in debt matters. Bankruptcies were up by over 100% at 17 and there were almost 70% more orders to have businesses wound up – 128 in total. This section of the report makes depressing but rather unsurprising reading for anyone who’s picked up a paper over the past twelve months or so. Numbers in every area have risen except for new businesses – rather unsurprisingly there weren’t as many people looking to take out restaurant or hotel licenses last year.

The grim economic climate has even made itself felt on matters of the heart. Divorce, separations and annulments are all down on 2008 as are applications for quickie marriages. Domestic violence applications are down as well though you can’t help wondering how representative those figures really are.

The Court Service Annual Report always gives an interesting reflection of the state of the country. It might be a reflection of a moment in time some distance away, given the time things take to get to court but it’s an overview of life that’s difficult to see anywhere else. The courts reflect the darker sides of society, the rotting underbelly that’s frequently hidden from our gaze. Looking at these figures might give us a slightly twisted view of the world we live in but it’s an accurate one nonetheless and says a lot about where we are, or at least have been, as a country.

Where there’s a Will…

17th June 2010 / Abigail / 1 Comment

It’s been reported in the papers today that Celine Cawley’s family are suing her husband Eamonn Lillis for a greater share of his wife’s estate. Lillis was convicted back in February of killing his wife – he hit her over the head three times but the jury decided that the prosecution had failed to prove that he intended to kill her. Under Irish succession laws he loses the right to inherit his wife’s half of the estate after being convicted of her manslaughter but he will still inherit his half of any property and assets the couple owned together.

The reports today say that Celine’s brother and sister Chris and Susanne Cawley are suing Lillis to ensure that his daughter with Celine will inherit a larger share of the couple’s €4 million fortune. The girl, who’s 17, is living with her mother’s family since her father was sent to jail. She will turn 18 in November and will come into her inheritance. She will also lose the anonymity guaranteed her as a minor so closely linked to a criminal trial. At Lillis’s sentencing, in a heartfelt victim impact statement Susanne Cawley spoke about the families concerns for the girl. It’s unsurprising therefore that they want to make sure she has the resources to protect herself from any unwanted attention.

Her parents owned three properties. Rowan Hill on Howth Head, where the family lived at the time of her mother’s death, a dream holiday home in France and an earlier home in Sutton. As things stand at the moment, Lillis could veto any property sales his daughter may choose to make. Her mother’s family wish to change this.

It’s not the first time that Celine Cawley’s will has hit the headlines. Soon after the trial, while I was working on the book of her tragic death and the subsequent legal proceedings, I wrote here about Lillis’s stepping down as executor of his wife’s will. I commented at the time about the curious politeness that has followed these horrific events. It appears now that the gloves have come off.

Presumption of Innocence – a vital rule but a contentious one.

16th June 2010 / Abigail / 0 Comments

Mr Justice Paul Carney hit the headlines again this week. The most senior criminal court judge in the country, he’s never been one to mince his words. The comments that have excited comment this time were part of an address to a criminal law conference in University College Cork, where he is adjunct professor of Law.

He was presenting a paper on “Victims of Crime and the Trial Process” and made the point that as a judge he would rather not be able to identify the victim’s family during a trial. In the new courts complex on Parkgate Street the family of the victim sit in the rows of benches directly in front of the judge and equidistant from the accused and the jury. Mr Justice Carney said that ideally the family should not be within the line of sight of judge or jury although they should be moved into places of prominence after a conviction.

These comments have provoked an angry reaction from victims families. They understandably feel that they should be allowed to stare down the person who killed their loved one in court, and make them see the lives they have damaged by their actions. It’s always going to be difficult to balance the right of the victims’ families to show their grief and anger at what has happened with the necessary presumption in law that the accused are innocent until a jury decides otherwise.

I’ve heard arguments many times from those who have lost someone in violent circumstances that killers do not deserve that kind of dignity but the problem is that until they are convicted they are presumed innocent of all charges. That is the law we have in this country and it is a fair one. Everyone has the right to be judged by their peers and it is up to the Director of Public Prosecutions to prove the case against them. I know that if I was on trial for a criminal offence I would much prefer to be tried under our presumption of innocence than have to prove my case when the default judgement was guilty.

With the presumption of guilt an innocent man could be unable to prove his innocence without witnesses or forensic evidence. I can’t help but feel that it’s better the innocent have a chance to defend themselves than the occasional guilty man (or woman, of course) walk free. If I was wrongly accused of a crime I’d rather the deck was stacked a little in my favour.

When you cover a lot of trials you get used to making your own judgement about the guilt or innocence of the accused. We hear all the legal argument and frequently the gossip that passes around the court that juries are quite rightly shielded from. You can usually call the outcome of a trial and contrary to some opinions I think that generally the outcome is the right one. You could be forgiven for thinking that there is a never ending stream of those who have eluded justice but that simply isn’t what I’ve seen. There have been occasions when a verdict has surprised me, or that I’ve disagreed with one, but out of all the trials I’ve covered I can probably count those verdicts on the fingers of one hand.

I may have commented here about the bizarre animal that is the jury, the tendency of perfectly sane, rational people to seem to be overcome with a kind of madness as soon as they set foot in the jury room but I can’t think of any better way of doing it. Jury trials and the presumption of innocence together with thorough garda investigations and competent prosecutions and defence are the fairest way to do things. If it was up to the gardai to try those accused of crimes or the legal profession alone or even us press, justice would be poorly served. Too much familiarity breeds an unhealthy cynicism and those twelve men and women need to come to the task with fresh eyes and as few pre conceptions as possible.

It might seem heartless when a trial judge like Mr Justice Carney says he doesn’t want to know about the grief of those who are the living victims in a murder trial. He has to be neutral and he has to be careful that he does not sway the jury. It’s a difficult job but that reserve, that separation, is necessary for the jury to do their job properly. They aren’t jaundiced by exposure to too much violence and tragedy. At the end of each trial they are urged to judge the case as if it was someone they loved in the dock, to give the accused the same chance they would wish for themselves or one of their own.

It is one of the great difficulties of the legal system that the victims’ place in this is, of necessity, therefore reduced. It would be inhumane to ban them from the courtroom entirely but their very classification as the “victim’s” family presupposes that there was a victim, and leans towards the presumption of a crime for that victim to fall foul of. That simply doesn’t sit with the presumption of innocence. When we are writing about a trial we have to bear in mind that the victim for the moment is probably best termed “the deceased” and the language kept as neutral as possible while still telling a gripping story.

For those who have lost someone to a violent death this must feel intolerable. For them it isn’t simply an academic exercise of checks and balances to tip the scales one way or another. They’ve been with this from the start. They had to have the news of the death broken to them, the indentifying of the body, the horror of the post mortem results and the garda investigation that made funeral arrangements so much more stressful. They’ve had the glare of the media spotlight pointed at them, searching for signs of anguish as the journalists follow the story of the latest brutal death.

For the media it’s just another story, for the barristers, gardai and judges it’s just another case out of however many, but for the families it’s their lives. It’s not something they will ever forget, not something they will ever leave behind, something that will scar their hearts for ever more. When the gardai come to them with a suspect and they follow the tortuously slow progress to the courts it is personal and raw.

But it’s this very anguish that can get in the way of justice. Grief can be blind to the nuances of law, the clinical deliberations that should be granted to anything that will take away a person’s liberty. It doesn’t matter what they’ve done, the only thing you can do is trust that justice works and the system will creep forward to the right conclusion. As long as we live in a civilised society those checks and balances need to be there. If the shoe was on the other foot you’d be thankful of them.

But the problem is that sometimes the presumed innocent person in the dock isn’t innocent and those giving evidence have seen their guilt with their own eyes. In those cases it doesn’t matter how visible the grief or anguish, if they’ve sworn to tell the truth you have to assume that’s what they’re doing. The jury will judge what weight to give their evidence but there will be cases when people are telling the truth and have seen terrible things which they have to relive in the court. In his speech Mr Justice Carney also commented on another peculiarity of the layout in the new courts, the fact that witnesses must pass within arms reach of the open dock where the accused is sitting. It was a similar layout in the Four Courts but a situation that really should have been rectified when they built the new courts. There seem to have been rather a lot of practicalities of the workings of a criminal trial that weren’t considered when the new court complex was designed.

It’s not the first time Mr Justice Carney has hit the headlines from comments he’s made to the UCC Law faculty. In 2007 he caused uproar when he criticised Majella Holohan, mother of Robert Holohan, who used her victim impact statement to raise matters that didn’t come out as part of the trial. He’s an outspoken judge and will be in the news again I’m sure. His comments are always thought provoking at the very least and the coverage they provoke allow for wider discussion about important points concerning the criminal justice system. People need to understand the law of the land and discussion is part of that.

An Issue of Privacy

1st June 2010 / Abigail / 0 Comments

The big legal story of the day is definitely the action being taken by convicted serial rapist Michael Murray to safeguard his privacy.

49-year-old Murray, who raped four women in a six day period in 1995, says he has been hounded by the press since his release from prison last year. He says he can’t take part in any meaningful rehabilitation programme when there are snappers hiding in the bushes wherever he goes and can’t even stay living in the same place. They say the public has the right to know where a serial sex offender is living.

Today was only the first day of the case so there’ll be a long wait to see what the court rules. It’ll be a judgement that anyone who covers the courts or crime will be watching with interest. Crime stories are big news in Ireland. Covering the big trials over the past few years I’ve grown used to seeing scrums outside the court after a verdict that would rival those usually reserved for Hollywood stars. Certainly a lot of the more paparazzi shots that appear in the papers are to do with crime lords rather than movie stars.

I’d be out of work if that interest wasn’t there but when it comes to privacy there’s a whole different can of worms. When photographers chase musicians or actresses they’re chasing people who signed up for the chase. Sudden celebrity might come as a shock but if you do something that requires you to perform in front of (hopefully) large crowds it kind of goes with the territory.

Those who commit crimes don’t tend to do it for an audience. They might crave some form of notoriety through their actions but it’s not really the same thing. Yet once they’ve been identified and especially once they’ve been caught and tried, they become a rather magnetic news story. This newsworthiness isn’t something that will fade with their looks. Once they’re convicted they are indelibly linked to their crime. If the crime was awful, tragic or extravagant then public interest in it will remain and so will journalistic interest.

Take Wayne O’Donoghue for example. Convicted in 2006 to four years for the manslaughter of his 11-year-old neighbour Robert Holohan, O’Donoghue was released from prison in February 2008 after serving three years. It had been a trial that hit all the front pages and passed into legal history when his mother Majella made certain allegations in her victim impact statement. Because of these comments this is a trial that tends to be raised any time there’s a discussion about victim impact statements and it remains fresh in the public mind.

Wayne O’Donoghue left the country after his release but as recently as this January the Sunday World ran a story about his new girlfriend. Joe O’Reilly’s girlfriend Nicki Pelley has been a regular tabloid fixture, photographed every now and then because she stuck by the man who was convicted of the brutal murder of his wife Rachel.

As long as the names of those convicted sell papers when they appear on the front page the press will keep their interest. That’s how newspapers work. When Sharon Collins, the subject of my first book Devil in the Red Dress, is released from jail the photographers will be waiting to see if her proposed victim PJ Howard is waiting to whisk her off to some Spanish villa. When Eamonn Lillis (subject of the latest book) has served his time there’ll be those wanting to see what he does next. There’ll probably also be those who are curious to see whether his former mistress Jean Treacy gets the Italian wedding she was planning while she was cheating on her fiancé with Lillis. The list goes on and on.

This is the nature of news. If something’s a story it’s a story. It might not be pleasant for those caught in the crosshairs but that’s the way it works. It may seem sordid or even rather repellent but these stories have been filling newspapers as long as there have been newspapers. But however you feel about the examples I’ve given what about those who have committed the really, really bad stuff…like Michael Murray, who raped four women in less than a week and whose own counsel describes as an “abnormal risk to the community”?

He served time for his crimes, his debt to society as decided by the courts. Is he entitled to privacy? A quick Google throws up some of the stories that obviously caused offence, stories of day trips to Bray, security alerts. When you look at the results Google throws up it certain gives the impression that he has had very little time since his release when he wasn’t being watched by a press posse. He’s not the first to receive this treatment but depending on the outcome of this case he could be one of the last.

These are the stories that lead to calls for a sex offenders register, for the public to have more, not less information about who lives close to them. But privacy is the right of every individual and that causes a problem. It’s going to be very interesting indeed to see how the Michael Murray case works out. I’m sure it won’t be the last time I post on the subject.

To Defame or Not to Defame

26th May 2010 / Abigail / 12 Comments

On Monday Justice Minister Dermot Ahern announced that comments posted on social networking sites could be defamatory. The papers the following day were full of headlines that warned users of Facebook and Twitter to be careful what they said because they could now be guilty of libel.

This is all fine and dandy but for one thing. They always could be. Libel covers any defamatory material that is written, printed or otherwise permanently represented. Surely any first year journalism student could work out that just as letters, emails, blogs or graffiti can be defamatory so can tweets or Facebook updates.

We should all be aware that what we write online is no different from something written in a newspaper or set down permanently in any other way. I have to be aware that anything I write online about the trials I cover is not going to land me in contempt of court just as I have to be careful with any copy I write for newspapers, magazines or books. Defamation is no different.

I understand that there are millions of people now writing stuff online who have not been taught a basic primer in defamation law that the average journalist receives in college but surely most people have a rough idea of what libel is?

The minister’s comments at the second annual report of the Press Ombudsman on Monday evening were indicative of a widespread assumption that online words somehow exist in a special alternative reality that needs special laws and special rules. The defamation laws are not suddenly applying to stuff that has been blissfully unregulated since it came into being, they always did. If online material is permanent then surely it is covered by the standard libel definition, just as letters to a third party have always been, just as graffiti has always been and just as blogs and emails are and have been proved to be in recent cases here in Ireland.

Yes the spectacular growth of social networking has given a lot of new ways to libel people but it beats me why this should come as a shock to anyone. The idea that online communities are in some way private, or at least give that impression, is often bandied around as as reason for why people are so cavalier about basic common sense online but this doesn’t really wash. You can commit libel in a letter to your mum…if you’re talking about a third party and the letter is put lovingly away in a box. It’s the making of defamatory comments to a third party that breaks the law. That could be over the counter in your local shop (talking the old offence of slander), over a pint in your local pub or standing with semaphore flags on your roof.

We should all be familiar with the basic idea of defamation. Now we all spend so much time writing down our defamatory thoughts, rather than cheerfully slandering people with gay abandon, we all need to be more aware of libel.

It’s something that internet forums have long needed to deal with, as has anyone who has to monitor comments on a website or blog and it’s not something that only journalists need to understand.

I remember being taught media law in college. Our lecturer came from the assumption that there was a lot we would already know. When did people stop assuming that? When did people start thinking that new rules applied? There are a lot of things that do need to be looked at afresh in light of modern technological changes, things that will have to be decided in the courts at some stage because they’ve never existed before. Defamation isn’t one of them.

Maybe it’s about time that social media sites or blogging platforms started to give people signing up a primer on the legal issues they’ll be facing. It could be something you had to work through before you could finish signing up…like reading the Terms and Conditions always is.

Commentators are fond of saying that we’re all journalists now. No we’re not, but we will all need to learn how not to defame people. It’s something we should all already know. It’s hardly rocket science. The penny is going to have to drop sometime that social networks are not some magic special case where the normal rules do not apply. It’s common sense. It shouldn’t be such a big shock that it makes headlines.

Web Savvy Jurors a Threat to Justice?

20th May 2010 / Abigail / 0 Comments

Earlier this week the Independent reported that a High Court judge warned about the risks of jurors googling background on a trial they were involved in or even an accused. It’s an issue that goes right to the core of the Irish justice system. We have a system here where an accused person is given the absolute presumption of innocence. As a journalist covering the courts it’s something that I have to take into account every working day.

It’s this presumption that means those accused of a crime are on bail before they are sentenced (unless they are considered too much of a flight risk or are serving time for another crime). If they are on remand it’s that reason that photographers must crop their shots so that prison guards and handcuffs are not shown. When we write colour on a trial we have to avoid using inflammatory adjectives to describe the accused, they can’t watch something slyly or have a hooded brow for example. It doesn’t matter if the only reason we’re there to cover a trial is because of whatever crime the accused has previously committed, as far as reporting it concerned he or she is as innocent as the driven snow until the twelve in the jury box decide otherwise.

This is where the Internet posses a problem. Once something is written in cyber space it’s frozen in time. It’s possible to take down content that would be prejudicial in a fresh trial but it’s almost impossible to police the on line chatter that accompanies almost any high profile trial. A bit of judicious googling can unearth all sorts of dirt on almost anyone these days. If you’ve broken the law in a sufficiently interesting manner to make the papers then the record of your crime will hang around for all to see. It’s where journalists find a lot of background but we’re not the only ones with the pass to the net. Anyone can do it and there isn’t really any way of stopping someone of doing it if they’re serving on a jury.

Now judges might not have to warn juries about the perils of the Internet but I can think of at least two trials off hand where the jury was told each night not to Google at the same time they were told not to read the newspaper or broadcast coverage of the trial. That’s really all a judge can practically do but it begs to be seen whether that will remain to be enough. The jury trial is a funny thing. I can’t think of a fairer alternative than having your fate decided by twelve of your peers but it’s never just that simple. Juries come back with bizarre decisions sometimes, or they’ve obviously not misunderstood some aspect of the trial or the charge but in the end what alternative is there?

We put an awful lot of responsibilities on juries. For so many people it’s just time away from work and an intrusion into the smooth routine of life but it’s vital. Civilian juries are used precisely because they don’t have all the baggage and assumptions that a jury of legal bods would have. If you watch too many trials the cynicism starts to eat away at you and that presumption of innocence is a far harder thing to accept. Of course judges every day rule objectively on all kinds of things but criminal justice in particular isn’t a matter of academic point scoring. We have juries partly to bring their humanity to proceedings. But that means we also have to trust them to play by the rules and observe the rules of their job.

This is one of those issues that exists in the hinterland between the man of the street juror and the legal tomes of the barrister. It’s human nature to peek where you’re not supposed to and I’m would be more surprised if jurors didn’t have a quick look on line. The tendency to gossip is assumed by the law. It’s the reason why the judge who swears in the juries on a Monday asks the jury panel if they have any connection with any of the places connected to a case. We assume they fess up if they do just as we assume they will be honour bound not to go online as soon as they get back from a day in court.

And that’s the thing. When you talk to people who’ve served on juries the one thing they all say is that they felt the need to do the right thing. They took their responsibility seriously. Now maybe I just have a particularly dutiful bunch of friends but it would seem to be fairly safe to assume that every jury will have at least someone who’s taking it seriously. You only have to watch the jury during a judge’s charge, when they realise that the ball is very nearly in their court and they will have to make a decision that will affect another human being’s life, to see that the majority do take it very seriously indeed. Juries are frequently discharged because someone admits talking to someone they shouldn’t or reading something they shouldn’t or even playing hurling with one of the gardai involved in the case. These things happen a lot. Surely that proves that jurors have enough sense to know what they should do and to put their hands up when it’s not done?

There will always be dodgy stuff on the net and it’s not necessarily the stuff blurted out on message boards. When a guilty verdict has been passed the media are fully within their rights to carry all the details they’ve been sitting on during the trial. All the sly looks and handcuffs and previous convictions. And once this stuff is out there, it’s out there. With regards to juries there seem to be only two choices. Either trust that they will do what they are supposed to and avoid googling the names of the accused or perhaps the victim, or sequester them for the course of the trial to make sure they restrain themselves.

The law has changed several times regarding sequestering. Juries are no longer required to stay together from the moment they have been sworn and for more than a year they are not even required to stay together once they have started their deliberations. The law changed recently to allow jurors to go home to their families each night. The court is trusting them not to discuss with husbands and wives and mothers and fathers and children and siblings and friends the often disturbing things they have heard during the day. We expect them not to unburden themselves to those they love because it’s the right thing to do. Surely that’s a harder prohibition than simply avoiding checking something? Surely if they can be trusted not to do one thing they can be trusted not to do the other?

The law is going to have to look at all the technological changes that have come into our lives in recent years. This is only one area that will require a cool, clinical eye turned over it to make a decision that’s not a knee jerk reaction from people who don’t really understand the modern ever connected world we live in but that’s an informed response to issues and problems that simply haven’t existed before now. It’ll be interesting to watch.

Back to the Subject of Sentencing

12th May 2010 / Abigail / 2 Comments

The subject of sentencing seems to be in the air this week. I was reading an interesting post from Hazel Larkin this morning within minutes of reading two letters (here and here) in today’s Irish Independent and it got me thinking.

It’s very easy to get upset about some of the sentences handed down in Irish courts. When you see rapists routinely sentenced to ten years or less, as in the particularly brutal case from Clare that was sentenced yesterday, it can be hard to see how the punishment fits the crime. But blaming the judges, as the letters to the Indo did today isn’t the answer. It’s a far more complicated situation than that and the judges are the least of the problem.

I’ve been covering the courts for more than four years, I’ve written on sentencing here on several occasions but it’s a subject that is just going to run and run. It can be very hard to fathom how a rapist, whose crime is deemed serious enough for the highest criminal court, the Central, is frequently handed a lower sentence than someone convicted of a drugs crime in the lower Circuit Courts. This isn’t because Central Criminal Court judges are softer than their Circuit Court counterparts, it’s the way the law is constructed.

There exists in Irish law a presumption of degrees. For example, if someone is convicted of possession of drugs worth more than €13,000, with the presumption that he has them for sale or supply, he must serve a mandatory minimum sentence of 10 years. This is all very well. If you take the drugs of the streets you might end up saving lives – or they could end up with the dubious delights of the Head Shop and you as government are left with another hole to plug.

The minimum sentence is all very well in principal, if you assume that everyone caught with vast quantities of drugs is a nasty predatory drug dealer but those guys very seldom seem to end up in court. What you see instead are the pawns, the hopeless drug addicts whose debt has climbed too high or the hapless third world dupes who see a better future for their families with the proceeds of acting as a drug mule. I’ve seen plenty of people who were as much victims of the drugs as the end users but all were sentenced to a mandatory ten year turn.

Then you have the rape cases. Cases as I’ve said which are tried in the highest criminal court, it’s put up there with murder. Yet there is no minimum sentence for rape. A grown man who forces himself on a woman or, in some cases, on a young child, can walk away after three or four years. Even if that attack goes hand in hand with false imprisonment, violent assault or psychological manipulation and entrapment. I’ve seen a lot of incest cases where the now adult victim has had to endure years of systematic abuse then relived it on the stand only to see their abuser sentenced for one or two years because he’s now an old man.

It doesn’t seem fair that drugs are deemed worse than sexual crimes. After all there aren’t that many people who take drugs who are forced to take them against their will, who are threatened and terrorised until they snort that cocaine or whatever. I’m not belittling those ravaged by addiction just making the point that those who are raped are never in a situation where they asked for it and very often are never in a situation where they can walk away. It’s not something that abstention will wipe away and it’s never, ever sought for a rush. Fine, drugs wreck lives. But rape destroys them. If there’s a minimum of ten years for some drugs offences shouldn’t there be a minimum for sex offences?

I’ve sat through a lot of both kinds of trials and I’m well aware that there are differences in degree, just as there are different kinds of killings but I can’t help but agree with those who say that for Central Criminal Court crimes the minimum sentences do not match the crimes. There are many reasons why the sentences for rape or manslaughter are the length they are. Judges have a complex way of arriving at their sentences. There’s the range of imprisonment for the crime in hand, then the mitigating factors that must reduce that term, with the sole exception of murder which earns a mandatory life sentence.

If the judge, who has sat through the entire trial, feels that a stiffer sentence than usual is fitting he must still bear in mind the Court of Criminal Appeal which has frequently overturned the longer sentences.

Each rape trial is different just as each murder trial and each manslaughter trial is different and it’s right that there is flexibility in sentencing but surely a violent rape should be classed the same as a murder if we’re going to be serious about prison being a deterrent. There are of course other factors in play as well, including the obligatory one quarter off their sentence that the convicted receive as a matter of course. It was an nice idea, a carrot rather than a stick to ensure good behaviour but when those being jailed are guilty of some of the most heinous crimes committed in the country surely there should be a mechanism to remove the carrot?

I remember the sentencing of Gerald Barry for rape last year. Barry had been convicted of the murder of Swiss student Manuela Riedo in March last year but it was only a couple of months later in July when a few of us gathered in Galway to hear Mr Justice Paul Carney sentence him for two ground of rape. Barry had raped a French student just weeks before he killed Manuela in a hauntingly similar attack. Judge Carney handed down two life sentences. He said then that he did not think the time off should come into force for men like Barry. He’s a judge who’s frequently outspoken. But the wheels of justice move exceedingly slowly and many of the things he’s spoken out about are still very much in force.

I can also remember a sentencing for a very nasty case of child abuse where the judge had wanted to hand down consecutive sentences, which given the multiple counts, would have added up to more than 100 years. Sadly there are strict rules governing whether sentences should be consecutive or concurrent (that is whether they run one after the other or at the same time) which means that consecutive sentences are a rarity, no matter how vicious the crime. It’s these same rules that mean that David Curran will effectively serve one life sentence even though he killed both Pawel Kalite and Marius Szwajkos.

There definitely needs to be reform of the sentencing for certain crimes in Irish courts. But from what I’ve seen it’s rarely the judges who operate from the coalface who are most at fault, it’s the appeal judges who base their decisions on a transcript or the politicians who pass the laws. There’s a reason why the crimes that tend to be highlighted on the voters doorsteps or those that make the headlines – gangs and drugs principally – are the ones that get the draconian measures. It’s time that someone who wasn’t after votes looked at the law and made the changes that could make Irish law as fair as it has the potential to be. This is by and large a great system, but it’s things like this that make people think it can’t be trusted.

Snapshots of a life

7th May 2010 / Abigail / 0 Comments

The thing about murder trials, one of the things anyway, is that you only see fragments of the story. The trial is a narrative all right, but one of a moment in time. An extraordinary, brutal event that gets picked over in minute detail, so the picture we get of both the accused and, often more so, the deceased is how they are frozen, in that moment of time.

It’s logical it should be like that of course. We are watching a dissection of that moment as the prosecution make their case but if you are writing about the story of the trial you are frequently left with very two dimensional main characters. Very often the deceased are the biggest mystery of all. They are the centre of proceedings but only as an abstract, an idea, maybe even a catalyst. They frequently have very little part in the story of their death while their killer, or those accused of that, sit in full view for us to scrutinise every twitch and glance.

It is the accused that we hear about as the prosecution seek to prove they are capable of the act they are accused of and the defence try to prove they’re not.

Yesterday I wrote about one of those fragments of insight, today I’ll write about another. Today we gathered to hear the victim impact statements written by the families of Pawel Kalite and Marius Szwajkos. Throughout the trial of David Curran and Sean Keogh, accused of their brutal killings, the Polish men have been little more than cyphers.

We have heard that they might both have been drinking vodka in the privacy of their bedrooms that Saturday evening in February 2008. We have heard that Pawel was incensed by being attacked by a pack of teenagers and had pulled on heavy boots before going out in anger.

Today we had the first inkling that the picture painted might have been distorted by what was to follow. The former boss of both men, Alan Kennedy, stood up to read the victim impact statements on behalf of the families. Before he started he addressed the court. It might interest us to know, he said, that it was a Polish custom to take off the shoes as soon as you entered the house. A simple statement, something he had learnt as he became closer to the families in the wake of the tragedy but one that had an obvious weight to those listening to him.

The implication was that Pawel had not been pulling on heavy boots to go and fight but simply outdoor footwear as he prepared to leave the house. The proximity to the violence of his death had given it an ominous edge that it should never had said. He read the statements with a catch in his voice, describing 29-year-old Pawel, who we had been told had been on his way to tangle with the teens who had cheeked him, when he met his death.

Pawel wasn’t like that, said his family. He was gentle, kind and sensible. Growing up from a small and sickly child with a smiling face to a man in love, who had called his aunt the day he died to arrange a trip to research house loans. He had met the woman he wanted to marry and wanted to move back to Poland to be with her.

He had loved his job and his life in Ireland and had been working on his English, travelling around the country to soak up the Irish culture. His savage death was like a screwdriver to the heart, they said, a wound that would never heal.

Marius’s family remembered the 27-year-old graduate with a masters degree in Mechanical Engineering who had rebuilt a 30 year old Volkswagen Beetle from a shell and made his sister handmade leather bags. His sister wrote about the time he had rebuilt another car for his father and how she still expected to hear his voice on the phone.

She quoted a Polish poem “Let us hurry to love people, they leave us too soon.”

Curran listened to both statements with his characteristic fast rocking. He seemed a little harder this morning, mouthing angrily at his family, who had been absent when he learnt his fate, telling them to “fuck off”. The frightened child of yesterday was gone in that moment. He’ll be fixed in the public consciousness from now on as an irredeemable monster. He sealed that fate for himself as soon as he swung that screwdriver but it’s always depressing to see a life wasted so totally so young. Now those he killed have been fleshed out as the restrictions of the justice system have been played out, he will always be that monster.

The Kalite family and the Szwajkos family will have to come to terms with their loss, it can never be undone. At least now they can redress the balance and flesh out the memory of the men they knew.

It’s always the same with murder. In the aftermath of the crime, when any suspects are still being investigated and arrests are yet to be made, it is only the victim. It is they who build the tragedy to it’s greatest heights as the media seek to show the light that’s just been extinguished. By the time we get to the trial though the accused is the focus and the victim fades into a fragmented part of the story.

It was particularly noticeable in the last trial I covered, that of Eamonn Lillis who was convicted back in February of the manslaughter of his wife Celine Cawley. During the trial Celine, who he had hit over the head with a brick, was painted as a shrieking harpy as the defence painted a picture of the lapdog who eventually snapped and bit the hand that fed him. It was only after the verdict, once again with a victim impact statement, that another side to her character was shown and the court caricature became a flesh and blood woman who was loved and missed by her family.

It’s the nature of the criminal trial and really can’t be helped but it must be so hard for victims families, sitting and listening not only to the forensic details that reduce a living person to a bundle of medical data, but also to what would amount to a character assassination in any other circumstances.

Another Controversial Manslaughter Sentence

23rd March 2010 / Abigail / 2 Comments

Ann Burke, the Laois housewife convicted of killing her husband Pat in Ballybrittas before Christmas was sentenced today. I covered the trial and felt at the time that I wouldn’t be surprised if a non custodial sentence was given.

Today she was indeed given a five year suspended sentence. Outside the court her husband’s brother Tom made it abundantly clear that Pat Burke’s family did not agree with the manslaughter sentence. He also said that describing his brother as an abusive husband had been a further assassination to his good name.

Even the judge noted that this was a rather skewed view considering the absolute litany of abuse both Ms Burke and her children described. Her children stood by her throughout the trial and one of the images I’m left with after covering it is the sight of them clustered around her protectively whenever the court rose. I’ve covered a lot of trials that have dealt with the darker side of married life but this case was one of the most graphic and most upsetting.

Pat Burke’s death might have been undeniably brutal, his wife hit him 23 times over the head with a hammer, but the life he forced her and his children to lead was also fairly brutal. I know that grief can make any one of us gloss over the less palatable aspects of a loved one’s personality but seeking to wipe out the years of abuse Pat Burke was described as meting out on his wife and children doesn’t seem fair to those children and the woman who was by marriage part of that family.

Ann Burke’s story isn’t unique. Up to the point where she picked up the hammer it is played out behind closed doors in every county in Ireland. The men who terrorise their families should not be shielded by their relatives or by their community, they should be forced to stand to account for what they have done. Holding down a job does not make a good provider, a good father or a good husband.

But whatever I think about the fairness of this sentence there are bound to be some who disagree. The subject of manslaughter sentences is one I’ve discussed often and at length here. It’s rare to see a non custodial sentence imposed but by no means unheard of. At the other end of the scale you have people like Ronnie Dunbar who was sentenced to life for the manslaughter of Sligo teenager Melissa Mahon. In between you have the likes of Finn Colclough and Eamonn Lillis, who both received more usual sentences with ten years (reduced on appeal) and seven respectively.

Since the circumstances that tend to lead to a manslaughter verdict are varied in the extreme it makes sense that there should be such a variation in the sentences handed down. Ronnie Dunbar was a manipulative schemer who was, according to evidence given in the trial, having an affair with the 14-year-old Melissa. Ann Burke was a woman who had moved from an abusive childhood to a horrific marriage and eventually snapped. I’m not saying it’s ever right to take another life but in her case it was probably understandable – certainly at least one of her children thinks so.

Sentences perceived to be on the lighter end of the scale are always the ones that provoke the most controversy. But the real issue is that the sentences that are the norm, those that work out between 6 and 10 years, stick in the throat as a suitable punishment for taking another’s life. It’s the same issue seen time and time again in rape and incest cases, where the sentences handed down simply do not seem to fit the crime.

It’s a very complex issue. Several Central Criminal Court judges have been very vocal about their feelings of their hands tied by the Court of Criminal Appeal. They will refuse to hand down a truly punitive sentence because of the likelihood of it being reduced on appeal. Even without the Court of Criminal Appeal though there are issues that reduce the majority of sentences by far more than you would guess. Chronic overcrowding in many of the country’s jails mean that prisoners are routinely released early and it’s written into Irish law that everyone convicted on a crime has an automatic one quarter off their sentence, a juicy carrot intended to encourage better behaviour in in jail.

Judges here do not have the option to stipulate a minimum time to be served, as they can with a life sentence in the UK. If sentences are going to change, then there’s a lot that needs to change within the system as a whole.

Having said that, I think today’s sentence was a very merciful sentence. Ann Burke will have to life forever with what she did. She didn’t need prison walls to underline that.

The Devil in the Red Dress Due Back in Court

7th March 2010 / Abigail / 1 Comment

On Thursday this week I’ll be back in court for the first time since the Eamonn Lillis trial came to a close. It’ll be a different court, Criminal Appeal not the Central, but the name on the list is another headlines grabber.

Sharon Collins was convicted at the end of 2008 of conspiring to murder her partner, millionaire property tycoon PJ Howard, and his two adult sons. She might have been successful if she had looked somewhere other than the Internet for her hitman, but as it turned out she ended up with hapless Las Vegas Poker dealer Essam Eid.

Sharon had no idea that Eid wasn’t what he said though and entered into a flirty correspondence with him, plotting all the gruesome details of the triple death. Eid had set up a website – you can see the archived page by clicking on the link at the right of this page – but he wasn’t very good at following through.

In September 2006, when the hit was supposed to go down, he arrived in Ennis, Co. Clare with his girlfriend / wife (depending on who you talk to) Theresa Engle. But instead of carrying out a hit they engaged in a bit of extortion instead. Eid turned up on the doorstep of Howard’s sons house and told them what was going on, then with a devastating failure to understand the fundamentals of the con, he offered people who had nothing to lose by going to the cops, an offer he thought they couldn’t refuse. To cut a long story short, they refused the offer and went to the cops.

The rest, they say, is history. The story is the plot of my book Devil in the Red Dress, so actually you can read all this is more detail by clicking on The Story Behind the Book at the top of the page. It’s going to be very interesting to see my cast again. I got to be on nodding terms and even chatting terms with both Collins and Eid over the course of the mammoth eight week trial in the Summer of 2008. I’ve not seen a trial like it before or since and then when I researched the book I realised the story was even more interesting than what we’d read of in court.

We don’t know what grounds either of them are appealing on but I will bet the events in a court room on the other side of the Atlantic at least get a nod. You see, only weeks before Eid arrived in Co. Clare, he had done the exact same thing in LA and his love interest Theresa Engle arrived back in the states to face those charges not long before her former lover was sentenced to six years in jail here. She was sentenced to eight months in jail, which she duly served and is apparently now back with her former husband who was even good enough to act as a character witness for her when she faced trial.

Here in Ireland the twisted story that was the love life of Essam Eid and his two wives was very much an after thought but researching the case I found it absolutely fascinating. There are also some extraordinary parallels with the kinky goings on that Sharon described to the Gerry Ryan show when she wrote to them complaining about her relationship.

It’s been a while since I’ve covered this story but I will be back on Thursday for old time’s sake. I’ll be blogging here and I’m sure updating on Twitter as proceedings go on. It’s been a busy year so far so it’ll be nice to step back onto familiar ground once more. I’ve never come across a case that reads so much like a Cohen brothers film and it was a fun one to write. If you’re interested in the whole story, it’s all in Devil emails, letters and all At the risk of a shameless self plug, it is definitely worth a read.

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