Tag: Law

On Contempt and Scandal…

12th October 2011 / Abigail / 0 Comments

One of the first things you’re taught as a journalist in terms of court reporting is how to avoid landing yourself in contempt of court. There’s a very good reason for this. There are limited workplaces where putting a foot wrong can land you in a cell but it can be a hazard of the job if you work in the courts.

The thing with contempt of court is that it’s perilously easy to land yourself in it, whoever you are. At the risk of stating the bleeding obvious contempt of court could be broadly described as anything that breaks the rules of the court. It could be a witness contacting a juror directly or, as happened in a recent case in the UK a juror contacting the accused. For a journalist it could be printing something prejudicial to the defence during a trial or printing matters said in the absence of the jury, even turning on a recording device in court. Some of these things are easy to avoid if you know the job – though mistakes do happen – but other forms of contempt are harder to duck.

There are many reasons not to comply with a court order. It could be journalists refusing to reveal their sources, as happened to Colm Keena of the Irish Times some years ago or a case like that of Offaly pensioner Teresa Treacy who was jailed for contempt for not allowing the ESB onto her land to cut down her trees.

But not all contempt is as easy to spot. There’s a type of contempt known as “scandalising the court”. This is the rule that, broadly speaking, means that a judge can throw anyone in his court into a cell for not showing sufficient respect. That might call to mind Soviet dictatorships or the Wild West but thems the rules. I’ve heard gardai threatened with contempt for gum chewing and an accused threatened for not sitting up straight. Last week in Bray District Court a barrister ended up on the wrong side of a contempt charge for not sitting down when he was told. Apparently the judge in that case, Judge Murrough Connellan has a bit of a name for running a strict courtroom. Back in 2006 he jailed a punk father for wearing a Sex Pistols t-shirt in court.

Judgements like the Bray one and Teresa Treacy’s incarceration might raise considerable comment but it’s the nature of things. The judge is in charge of the courtroom and some wield that authority heavier than others. There aren’t many judges now that would throw contempt at someone who’d arrived in court in jeans, or the wrong t-shirt for that matter, but it’s usually a good idea to dress neatly – just in case.

In a totally unrelated matter, I’ve been writing elsewhere this week. The National Library of Ireland asked me to write a post on my specialist subject ahead of their Thrillers and Chillers season of Library Late talks. I’ve been spending a lot of time there recently, researching far more lawless times than these so I wrote a post on our fascination with murder and how some things never change – with examples from the 1850s.

Another Fine Mess

14th July 2011 / Abigail / 0 Comments

I’m sure I’m not the only journalist glued to the whole cataclysmic mess that is the UK phone hacking scandal. It’s a proper toe-curling political and social scandal on the scale of Watergate and at its heart is the press itself…and whatever else we might or might not get up to we do love reading about ourselves.

The dust is very far from settling on that that story and it’ll be a while before everyone knows just how far the toxic fallout has settled but even at this stage one thing is certain. This is a story that will be talked about and written about not just for the coming months but for years to come. It’ll be picked over and analysed and agonised over while many breasts are beaten in hollow mea culpas and many other shoulders shrugged.

So I’m getting in relatively early. I’m not getting into the rights and the wrongs of phone hacking and whatever else is lying in wait to come out next. There’ll be plenty written in other places than here. This is simply a personal view.

Journalistic ethics are in the spotlight at the moment and the general consensus is finding them absent at best, if not festeringly rotten. In a survey commissioned by the Irish Medical Council earlier this year only 37% of Irish people trusted journalists to tell the truth. We came in above politicians but given this was before the last general election that really isn’t much of an achievement. But it’s not a recent slide. I know the guarded look that comes across peoples faces when I tell them what I do and I know the reaction of some of my actor parents’ friends when they learned my chosen profession. It’s not just that people are worried at ending up in the story it’s that they expect me to twist their words if they end up there. What’s really crazy is that a lot of them relax when they find out I write fiction as well – even though the odds are far greater of them ending up there, unless they kill someone.

I’m not wringing my hands and whining that no-one likes me because I’m a hack. I know that by writing true crime I’m skating on the edge of what’s considered respectable to write about. Once again I would probably get less flack if I wrote crime fiction – because then I’d only be dreaming up interesting ways to kill people instead of writing about peoples’ actual attempts. The fact that I cover the trial rather than doing the death knocks and chasing grieving families doesn’t count for much when I’ve written not one but two books picking over every bloody detail of stories that might have faded away as the public looked to the next big thing…or so some may think.

But that doesn’t make me unethical. It just means I’m doing my job. On the back page of it’s final edition the News of the World quoted George Orwell. The essay they quoted is called The Decline of the English Murder and in it Orwell examines the public fascination for a good murder. He talks, tongue in cheek, of the “golden age” when murders harked back to a sense of melodrama that chimed with the public consciousness. Modern murder happened too easily, he argued, to stick in the consciousness of a nation numbed by war. Orwell’s modern murder happened in the mid 1940s…but his point still stands. There’s still an appetite for death, one that is part of human nature, but as life has been cheapened with an increase in thoughtless deaths so that appetite is increasingly seen as a guilty thing, one of our baser instincts that has no place in a civilised society.

The ongoing revelations of the hacking of murder victims phones and the rest feed into a perception that’s been there for a long time. The dodgy journalist is a stock character anywhere from Harry Potter to Coronation Street. I suppose it goes hand in hand with the fact that part of a journalist’s job is asking questions that people don’t want asked and on occasion snooping where some would rather you didn’t go. But if journalists didn’t have this instinct how many injustices would have gone unremarked? How many scandals would have gone uncovered?

It all goes back to ethics and journalistic ethics are something that perhaps have been increasingly overlooked over the past couple of decades. When there’s an increasing pressure to sell newspapers in a market that’s changing so quickly and shrinking even faster then the urge to satisfy public curiosity with gory details and juicy revelations will grow and can in some cases leave taste and ethics languishing in its wake. When I studied journalism in the mid 1990s, in a four year course that covered everything from languages to philosophy to film theory, there was no dedicated strand of the course that covered ethics. We were made aware of the NUJ Code of Conduct but a dedicated class, where ethical issues could be debated and fully understood, was lacking. How can you trust that young journalists will have a sufficiently strong moral compass to negotiate frequently complex ethical issues if you don’t give them the training to recognise these issues when they arise?

The exclusive has become the be all and end all and “human interest” has become a driving force. Everyone who covers murder trials knows that even that formulaic process has it’s money shots. The tears of the victim’s mother, the stoney face of the accused when he’s sentenced. We write according to narrative rules that are embedded in instinct. In order to sell a trial you have to draw out the emotion and spoon feed it to a public numbed by constant repetition. We fit the characters in a trial into the same roles that they have occupied since the popular press came into existence, the dramatis personae of a melodrama with a fixed outcome and set pieces. It really is nothing new…even Jack the Ripper himself, it’s been suggested, had help from the press – the infamous letters with their bloody signature that gave a monster such a memorable name may even have been hoaxes written by newspaper men to drum up more readers.

I write about murder trials because that structure fascinates me. I’m interested in what drives someone to kill, on how easy it can be to take that decision to break one of the deepest taboos and end a human life. It’s an interest that hasn’t just been limited to the so-called gutter press. Charles Dickens covered many a murder and Truman Capote’s greatest work was not the tale of Holly Golightly but the examination of the brutal murder of a family that rocked a small town. But I know that in the eyes of some people out there I might as as well be rooting through people’s bins and papping celebrities.

I’ve always cared about ethics. It’s not enough to observe the law, there is a moral responsibility there as well. It’s important to be fair, not just because I’m afraid of influencing a jury, but because it matters. The press have always been known as the Fourth Estate and with that comes a duty. We are allowed in the courts to make sure that justice does not take place behind closed doors. It’s the press who keep an eye on the politicians to ensure that they have the public’s best interests at heart. That’s the way it should be and that’s still often the way it is. In the face of all these recent revelations those sentences might sound trite and insincere but if the fall-out of the hacking scandal results in a hamstrung press that cannot shine a light on bad men and corruption society as a whole will be all the poorer for it.

There will always be a grey area here, a blurred line between public interest and what the public is interested in but without strong ethics journalism, and investigative journalism in particular, will suffer. The subject will be done to death in the weeks and months to come but somehow that trust will have to be rebuilt. As long as the press is attacking itself and there’s ammunition for it to do so, other stories are being ignored. Even by making that distinction between the “gutter” and the “quality” press journalism isn’t being served. There are plenty of ethical journalists out there but it’s too easy to tar us all with the same brush. This is a massive subject and far too big for a single post. By the time the dust has finally settled in this almighty mess I just hope that journalism doesn’t take too big a hit. I don’t know how this is going to fixed but I hope someone out there does. I became a journalist because I wanted to make a difference not because I wanted to rake muck. There should still be a place for making a difference when the last shots have been fired.

A Vision of a Dickensian Past…

5th May 2011 / Abigail / 0 Comments

I love to start the day with a bit of hyperbole but in the case of the Irish Prison system it’s not much of an exaggeration. Yesterday at their annual conference the Irish Prison Officer’s Association complained that the chronic over crowding and lack of resources in Irish prisons was making their jobs near impossible.

As I’ve mentioned here before I’ve been spending a lot of time delving into a more Dickensian style of justice over the past few months. When Dicken’s Bleak House was first serialised in the mid 1850s Kilmainham Goal was still an unreformed mass of men, women and children forced to desperate measures by years of famine. If you ever have the chance to take the tour look beyond the political stars who helped to create the State we live in and look at the ordinary cells in the old part of the building. They’re tiny, cold and dark. In those days there wouldn’t have even been glass on the windows so on cold nights the winter wind would bite at inmates trying to sleep. Exercise was minimal, a shuffling circuit of a tiny yard, whose high grey walls hid all but the pale blue of the sky. The prisoners were put to hard labour, and forced to survive on a diet of not much more than bread and water. If you had money things were a little easier as deep pockets could buy all kinds of luxuries from the underpaid, easily swayed prison guards.

Over a century and a half later it’s easy to assume that things are far more humane – and they are, of course. There’s no longer hard labour and the windows in modern prisons do have glass in them but listening to the prison officers there’s still a long way to go.

I’ve only been inside a prison once and that was to a remand prison, where those who are awaiting trial, or extradition, or deportation are sent. These are men who have not been convicted of any crime. They are not serving a sentence, even if they are awaiting a trial. The prison, Cloverhill, is classified as a medium security institution. I’ve spent enough time working in the courts to be somewhat cynical when it comes to guilt or innocence but the fact remains that our justice system centres on the presumption of innocence. If there’s no conviction, in the eyes of the law, there’s no guilt.

OK so practically, any remand prison is going to contain at least some prisoners who will one day be fully guilty in the eyes of the law. They will inevitably be pretty nasty individuals even before that sentence is handed down because real life doesn’t have the same level of distinction that the law has when dealing with this tricky subject of guilt and innocence. When people end up in a remand prison before standing trial it’s generally because for one reason or another they haven’t qualified to be out on bail. It’s complicated.

I’d got to know the visitors centre attached to Cloverhill while I was covering a trial in the attached courthouse over several long weeks in the Spring of 2007. It’s a great service for the families who come to visit the prison. Toys for visiting kids, tea and coffee and the women who staff the place are always happy to offer words of advice and support. It was set up by the Quakers and the walls are bright with children’s pictures. The pictures might have to taken down though – prison authorities have ruled they’re a fire hazard. The women who run the place are most proud of the so-called Unity Quilt, it’s squares made by visitors, prison officers, solicitors and staff at the centre, which is due to hang above the service hatch to welcome anyone who comes in with a brightly coloured gesture of humanity. It’s not up there yet though. It’s had to be sent away to be treated with fire retardant…completion date and cost unknown.

The visitors’ centre is one of the few signs of humanity you’ll see when you visit the prison though. It’s a pretty grim experience. When you apply for a visit you are given a time with the strict instruction that you arrive fifteen minutes ahead of time for your half hour visit. I was booked in for a 2 o’clock appointment and sat nursing a cup of tea while the clock ticked past the hour, waiting for the prison officers to finish their lunch and come and open the hatch.

Once you’re checked off the list, had your ID checked and you’ve left mobile phone, bag, coat etc in the lockers provided it’s time to walk across the car park to the prison itself. Heavy metal doors slide back to let you through in increments with frequent stops for more ID checking. The security check is stiffer than the one’s you find in Irish airports, a full body scan and pat down, shoes off, the lot. Then it’s through a rabbit run of high wire fences to another automated metal door that lead to the prison proper…sort of.

The visit itself takes place in one of a series of rooms. Well when I say rooms…it’s not like you see on TV. There’s no cubicle with speaker phone hung on the wall, no large room with bare tables and plastic chairs, nothing like those tense scenes from Hollywood when the heroine confronts the bad guy . There’s a large room that’s been divided into smaller rooms. The smaller rooms have two glass walls and along their length are little benches positioned in front of a hatch like the kind you find in a bank or a dole office. There’s no speaker phone. You have to raise you voice to be heard through the metal grill set into the ledge in front of you. The rooms alternate, one’s with open doors for the visitors and ones with a blue metal door down one end and a caged box for a prison officer at the other. There was something about the place that reminded me of an old aquarium or a calf shed. Somewhere to go to view, not to have any kind of meaningful conversation.

Most of the other visitors on the same slot as me were young mothers wrangling hyperactive toddlers. They leaned low over the metal grills and tried to murmur a private conversation over the din. The kids ran up and down the room, bored and shrieking, ignoring the taps on the glass from their dads as they tried to attract their attention. They’ll grow up with memories of seeing daddy in that grim cattle shed that won’t be tempered by the bright colours of the visitors centre quilt. Couples put hands up to the glass to simulate contact under the bored gaze of the prison guard. The women took it all in their stride, accepting the grim normality, just the way things were.

I know prisons are meant to be a deterrent and contact is banned to prevent the passing of drugs or other contraband but it didn’t seem to offer much dignity to those having to shout to make themselves heard. It all felt a long way away from the holiday camp that we’re told Irish prisons have become. I only saw the tip of the iceberg as a visitor but it really didn’t feel all that much different from the the Victorian corridors of Kilmainham.

Irish rates of recidivism run at about 40% – you don’t have to cover the courts for long to be unsurprised by this depressing statistic. Earlier this year the Council of Europe Committee for the Prevention of Torture castigated the Irish prison system, calling it “degrading” and “debasing” citing the hundreds of prisoners forced to slop out their cells each day. The tabloids run a steady stream of stories about mobile phones and drugs being freely available in the majority of Irish prisons. The system as it stands doesn’t work but it’s going to take a serious rethink to change it. Overcrowding needs to be dealt with. There should be greater support for those leaving prison so they don’t slide straight back into their old lives. It’s easy to say but it’s harder to do but something needs to be done. Maybe rather than viewing the problem in isolation we should take a leaf out of the Scandinavian approach of viewing the issue holistically, treating each offender as an individual with an individual path to where they are and individual needs afterwards. Surely it’s worth a try anyway?

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.

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.

Lively Debate

16th October 2009 / Abigail / 0 Comments

Last night I went to the inaugural Insight Debate at the National College of Ireland. It’s not something I’d normally have gone to (my college days are long behind me and there never seems to be any time) but as the motion was “this house believes that the scales of justice are tilted towards the criminal” I made the effort.

Given the day job it was a subject that I’m more than familiar with and one that often comes up in the courts – prolonged exposure to the court beat tends to send people either to the right or the left so discussions can get heated. Even in the controlled circumstances of a formal debate structure like last night, things got heated.

The lecture theatre was packed and there were plenty of familiar faces dotted around. I was live tweeting the debate, trying to get as many of the main points as I could but once the discussion was opened to the floor it was almost impossible to keep up.

This is a subject that will always get people’s blood up. Crime is something that affects everyone living in a society and we can’t avoid the latest escapades of a bewildering array of miscreants that seem to keep some red tops in business. Now granted, for me, a substantial drop in the crime rate would be fairly disastrous for the bank balance but it’s impossible to sit through trial after trial, especially at Circuit Court level, without forming some opinions about whether or not the criminal justice system works or not.

As I said, it’s a topic that comes up fairly frequently among my colleagues and I’ve often heard the opinion that working the court beat can actually make you sleep safer in your bed. It really is a case of the devil you know. You realise that the gardai, for the most part, do their jobs well and there are a lot less miscarriages of justice than you might previously have thought. Even though I’ve written here about some of the more peculiar decisions that are made in the courts, the reason I comment on them is because they are peculiar.

More often than not once you’ve sat through the horrific details of some crime with the absolute certainty that the tattooed thug beside you did everything he was accused of and probably more, you have the satisfaction of seeing a conviction at the end of it. Juries might be subject to certain flights of lunacy on occasion but for the vast majority of the time the bad guys go to jail and the innocent men walk free. It doesn’t always work but it mostly does and it’s the safest system we have. Having 12 random men and women who will not look on court proceeding with the jaundiced eyes that familiarity can breed, is a hell of a lot fairer for all concerned than any alternative I can think of.

It was fascinating to watch the debate and hear the comments that came from the floor. Certain issues stood out through repitition and showed current preoccupations. Rather unsurprisingly the subject of white collar crime was a recurring theme. It seemed to be a general consensus that many in the audience, regardless of which side of the motion they came down on, would rather see the prisons full of bankers than many of the others who currently lodge there. I could be wrong but I think that every speaker made a crack about John O’Donoghue’s ignominious departure from the post of Ceann Comhairle earlier this week. I get the feeling though that jokes about expenses are going to be satirical currency for many months, if not years, to come.

The idea of treating those who end up in the criminal justice system through disadvantage and drug addiction with a degree of compassion is one you see a lot in the Circuit courts. The idea that there are people who wouldn’t commit crimes if they could kick the drugs comes easily if you listen to sentencing after sentencing where the defence mitigation speech sounds the same. Education for those in the lowest economic groups and access for treatment for those who become addicted to expensive drug habits with no way to support them, would appear to be a no brainer.

The idea that those involved in the criminal justice system need to be treated like human beings instead of numbers arose on both sides of the debate. The more vulnerable amoung those accused of crimes deserve a way to get themselves out of the hole they are in and the system needs it’s checks and balances to ensure that those accused of a crime get a properly fair trial. We’re back to the jury on this, and the presumption of innocence.

This presumption is the cornerstone of Irish justice. It’s the way we do things here and it’s a far more dignified way to treat those in the dock. Even the dock in Irish courts no longer exists so that the accused is not stigmatised by having a set place to sit. OK so in practice they all sit in the same place, that seat formally known as the dock, but the principal is there.

The presumption of innocence seems to be the hardest part for those affected by crime to grasp. Why should someone who you know has done you wrong, because you were there or because you know the facts of the case, get to be treated like an innocent man.

I know it can be difficult for victims families in a murder trial when the accused swans in through the Four Courts gates ahead of them each morning before the trial. They find it galling to watch the defence successfully exclude reams of evidence that make up part of the complex case the gardai have painstakingly built. I can’t comment on the wrongs and rights of the evidence and the bail but while a trial is ongoing all you can if you are there to see justice for your loved one, is trust that things will work out. Most of the time they do.

It must be hard to watch someone you believe to be guilty treated with kid gloves but better that than an innocent man treated like the devil himself.

The flip side of this issue, which was returned to time and again by both the audience and the team proposing the motion, is that of victims rights. Ger Philpott from Advocates for Victims of Homicide (AdVic), spoke movingly of his experiences of the justice system as he watched the trial of the men accused of the murder of his nephew Russell Deane.

I’ve seen mothers of those killed thrown out of the court for crying as the story of their child’s last moments is recounted to the court. I know why their displays of emotion don’t play well with the defence but it’s always one of the most awkward bits of a trial when it happens. Victims don’t really have a place in the prosecution of a case. If they weren’t around for the events leading to their relation’s death they might not even be called as a witness. Often the only thing they can do is provide a victim impact statement at the very end, once a conviction has been secured. I’ve seen some very nasty characters indeed milk their status as an innocent defendant as a blatant way of twisting the hearts of their victims even more.

Crime by it’s very nature hurts those it happens to. Those wounds run deep and the criminal justice system doesn’t always help the healing process – one of the points thrown up the the audience was that even data protection legislation conspires against victims of violent crime and their families. Under these rules the gardai are forbidden from passing on their details to some of the support groups set up expressly to help them.

It was perhaps inevitable that the ayes would have it and the motion would pass. Our justice system is a complex thing built over centuries, in need of modernisation and streamlining perhaps but for the moment it’s the one we have to work with. When we read about the criminal gangs who maim, kill and wreak lives, then terrify those who could be witnesses to send them away it’s hard not to feel that this world we live in is a dark one indeed. We can be passionate about human rights and justice but if crime comes into your life it’s hard to keep that objectivity. It was great to see the subject debated so thoroughly though. It’s always good to challenge viewpoints and I’ll look forward to the next debate with interest.

I’m just playing around with some of the ideas thrown out last night here. I’m not saying which side I voted for merely continuing the discussion. Feel free to join in!

Of Gangs and Justice…

30th June 2009 / Abigail / 0 Comments

Today Dermot Ahern published the Criminal Justice (Amendment) Bill 2009. It’s the latest in a series of changes to criminal justice laws here in Ireland that have been published in the last couple of weeks.

Last month the minister published the Criminal Procedure Bill 2009 with removes the Double Jeopardy rule, under which a person cannot be tried twice for an offence for which they have been acquitted. Under the proposed legislation there will be three exceptions to the rule; where new evidence becomes available, where a trial was “tainted” by intimidation of witnesses and perjury and where a judge gave a mistaken ruling on a point of law which subsequently led to an acquittal.

It’ll be very interesting to see if any familiar faces appear again in court if this legislation is passed. There have been a couple of high profile murder acquittals in the past couple of years which I’m sure the gardai and the DPP would love to revisit if they can.

Today’s publication deals with another highly contentious issue – that of organised crime. With gang violence a major problem in modern Ireland, gangland murder trials have become a fairly common occurrence. You can always tell when there’s one coming up on a Monday morning because Court 1 suddenly has a garda checkpoint outside it and everyone’s bags are checked and pockets emptied.

Defendants like Gary Campion, convicted in April of the murder of “Fat” Frankie Ryan. Campion is connected with the Dundon McCarthy gang in Limerick and was convicted in November 2007 of the murder of bouncer Brian Fitzgerald. Both these trials took place in Cloverhill Courthouse, a court where increased security is easier to arrange than in the historic Four Courts complex.

Under the new bill, which the Minister hopes to get passed into law before the Dail rises for the summer, those accused of gang crime, where there was a major problem with witnesses or juries being intimidated, could be tried by judge alone in the Special Criminal Court.

At the moment, the Special Criminal Court is reserved for paramilitary or terrorist crimes. The idea of extending it’s use to include those involved in criminal gangs is not a new one. Previous justice minister Michael McDowell had mooted it and there have been one or two of these cases tried there already.

In 1996, Brian Meehan, the only person tried for the murder of journalist Veronica Guerin, was convicted to life in the Special Criminal Court. But there has always been a lot of opposition to the idea on the basis of civil liberties. Almost as soon as it was published the Irish Council for Civil Liberties accused the bill of “trampling on the rule of law”.

I’ve heard arguments on both sides for the use of the Special Criminal. I must admit though that when you’ve sat through a trial where witness after witness will barely admit to their name on the stand or changes their story at the last minute it’s easy to see the sense in a trial where gardai will be permitted to give evidence of what was claimed in these cases. After all, is there that big a difference between some of the trials that have gone through the Special for those members of an “illegal organisation” and the facts of some of the cases that now take place under the gangland banner.

I remember being taught about the Diplock courts when I studied in Northern Ireland. We were told that all offences that involved firearms were treated as “scheduled offences” and could be tried in the Diplocks.

I’m sure that we’ll hear all the arguments for and against the changes in the law when the legislation is debated in the next few weeks. It’ll be a very interesting one to keep an eye on.

The Books

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