Category: Legal (Page 2 of 4)

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?

Sitting in the Wrong Seat

26th March 2011 / Abigail / 1 Comment

I’m always open to new experiences but there are some that I’d much rather leave on the shelf. I’ve been covering the courts for a long time now. I’m used to walking into a courtroom and finding somewhere to sit where I have good sight lines and can hear what’s going on. If there’s a table or a ledge to rest my notebook, so much the better.

I’ve often wondered idly what it would be like to sit on a jury – although it probably wouldn’t be much in the interests of justice for me to sit on one. You get a wee bit cynical in this gig – I can be a little harsh in my judgements. But, like many of my colleagues, I’ve often wondered what goes on behind that closed door.

Also in common with my colleagues I’ve cringed in sympathy when one of our number has had to take the stand during a trial. We’re used to covering the story, not being part of it. The witness box is one seat I’ve never had a particular urge to sit in.

In the courts everything has it’s place. The judges, barristers, court staff, gardai, prison officers and the press all have their roles just as surely as the jury, the witnesses and the accused. We all sit in set parts of the courtroom, are generally on nodding terms and are all there to do a job. I’ve been working there for almost five years and I’m very familiar with my place in all of it.

So it was disconcerting this week to find myself sitting in that seat I’ve never really had an urge to sit in before. On Thursday I was a witness in the civil case taken by Sasha Keating, daughter of murdered Meg Walsh, against Meg’s husband John O’Brien, the man sensationally cleared of her murder after a lengthy trial back in the spring of 2008.

I had been called because I covered that trial and had written about what Mr O’Brien said when he gave evidence in his own defence. The case was about whether Sasha, as Meg Walsh’s next of kin, had a claim on the house her mother had owned with John O’Brien. Since Meg’s death, the house had reverted to the sole ownership of John O’Brien and had not been treated as part of the estate. I had been asked to use my shorthand notes of the trial to confirm whether Mr O’Brien had mentioned the fact that his wife had started a process of moving the house into her name on the stand. The process had begun after a violent argument a few weeks before Meg Walsh disappeared. She had consulted a doctor, a garda, a solicitor and a banker and a letter had been sent to John O’Brien telling how serious the consequences of the matter could be.

O’Brien had indeed mentioned this under cross examination. He had said he had agreed to sign the house over to prove the attack would never happen again. He denied that it formed a motive to murder his wife.

That was my evidence. A sentence. A couple of squiggles in an old notebook. Half a quote. But last Thursday I found myself in Dungarvan steeling myself to walk across the faded carpet and climb the step to the seat that would have everyone’s attention on me.

Standing outside the courtroom that morning was one of the more surreal experiences I’ve had in a working day. I knew most of the journalists who’d travelled to cover the case and since I’d covered the original trial they all assumed I was there like them to cover an interesting post script to one of the most high profile trials of the last few years. At first we just chatted but all too quickly the interest shifted from fellow coverer of the news to a potential fragment of it. Standing outside the door of the courtroom I was glad I had dressed with more care than I do to slip into my customary place on the press bench. I’d taken care with my makeup and had actually worn a dress, and just as well because it wasn’t long before the TV3 camera turned it’s lens in my direction as I stood chatting with my colleagues. How good was that going to look on the evening news?

When we went into the court they all went and sat at the end of the barristers table, leaning their heads together and glancing around the room to check the demeanour of the key players as John O’Brien and Sasha Keating took their seats with friends and family, a few rows away from each other. I took a seat in the body of the court feeling horribly conspicuous. Even though I was well aware that my evidence was unlikely to feature in any headlines unless I made a complete tit of myself on the stand and got relegated to colour.

I wasn’t called till after lunch and once I’d given my evidence all the lawyers left the room with a speed that is enough to give a girl a serious complex. As predicted I didn’t in fact make the evening news and I doubt if my evidence will sway the judge one way or another but it’s an experience I wouldn’t be eager to repeat.

I cover the courts. I’m used to observing what goes on impartially, being free to comment, to tell the unfolding story. Being a witness is different. I am always careful to be accurate in my accounts (I wouldn’t be doing my job otherwise) but it’s a strange thing to actually take an oath to do it. I’m used to hearing those words a dozen times a day but when it was my turn to affirm I stumbled, becoming one of those witnesses I’ve smirked at as an airhead for being unable to remember to the end of a sentence. I know when I was answering the questions being put to me I wasn’t concerned about how fast I was talking and probably gabbled my way through the little bit of evidence I had. I also forgot that when all the barristers left the room and I wandered down from the witness box that I was still under oath until I had been released and had to catch my tongue before wandering over to one of my colleagues and starting to chat about how things were going.

Something that should have been so familiar and so simple to do was actually nerve wracking and downright weird. I felt like a fish out of water and followed my instructions with a rabbit in the headlines automation that I’ve seen on so many faces as they clutched the testament in sweaty fingers to say words that have suddenly developed a whole lot of meaning.

It was only five minutes and it wouldn’t have made my court report if I’d been sitting with the press but from where I was sitting it felt like the world had flipped on it’s access for a day and was all hopelessly unfamiliar. The next day I was back in the press benches and back in Dublin. It felt damned good.

A few thoughts on International Women’s Day

8th March 2011 / Abigail / 1 Comment

I’ve been spending most of my time recently lost in the past. At the moment I’m researching crimes from so far back they’re in another world. If you were accused of a crime back then there was no chance of a retrial and if you were convicted of murder then your fate dangled at the end of a rope, a ghoulish spectacle for day trippers.

Life was brutal, shorter, bleaker. Cholera and typhoid swept Britain and Ireland and infant mortality was high. I’m looking at a time when there was no such thing as universal suffrage, to vote in an election you had to have land, and be a man. Women belonged to their husbands, on the day of their marriage everything they owned passed to him, they could not divorce their husbands if he was unfaithful and on divorce they could lose even the right to their own children.

It’s like looking into another world. Now we can take for granted the right to vote and the position of the mother, given special protection in Article 41.2, is seen as so inalienable it can be to the detriment of the rights of the father. In a few short generations, women’s lives have changed utterly. We have more freedom, more of a voice, more opportunities than our grandmothers did, and even many more than our mothers’ generation.

But while there’s been incredible progress, the world we live in still has a very long way to go before there is true equality for the sexes. I work in a job where most of my colleagues are women but only to a certain level. Apart from one or two notable exceptions, the majority of judges in the courts, or editors in the newspapers are men. Most of the senior barristers are men and most of the senior gardai are men. It’s changing, of course, but for a large chunk of the rest of my working life that’s the way it’s going to be.

85% of the politicians who pass the laws that govern what goes on in the courts are men, which might possibly have something to do with the fact that sentences for sexual crimes are so pathetically low. Domestic abuse is still rife and women still die all too often at the hands of their partners. I still spend most of my time writing about this violence against women as it takes up so much of the courts’ time.

But this is the First World, the civilised bit. The inequalities I see around me are miniscule compared with those that women have to face in other parts of the globe. We’ve come a long way in a hundred years or so, but there’s a hell of a long way still to go. There are plenty of places on earth where women would recognise the strange world I’m finding in my research as pretty close to their own reality.

Yet I meet so many young women who see feminism as a dirty word and would be embarrassed to apply it to themselves. They see the race as won, the fight as fought, and simply accept the status quo as something that can’t be changed. For a long time I was more reticent about saying what I thought, not wanting to appear strident, or even, god forbid, unattractive. I’ve laughed along with sexist jokes for fear of being branded a kill joy. I’ve fluttered my eyelashes and bitten my tongue, pretending to be one of the lads. Don’t get me wrong, I’ve not got a problem with men. This has nothing to do with which gender is better, it’s about equality. And it’s important to say it.

It would be nice to live in a world where feminism was no longer necessary, where everyone played to their strengths and not their stereotypes. It would be nice if everyone judged everyone else according to who they actually were, not what they seemed to be. But that’s the foreign country and far more distant than my world of hangings, cholera and bridal chattels. That’s why International Women’s Day is still important a hundred years after it was started and why I’ll keep banging on about rape sentencing and women who die at the hands of the men who claim to love them.

New Leaves for Spring

27th February 2011 / Abigail / 0 Comments

You would have to have been living in a hole, and a hole with no internet access or phone signal, to have missed the fact that Ireland has been in a bit of trouble lately. The economy’s screwed, the government banjaxed and there’s talk of revolution (just talk mind you.) Well finally there’s been a change and on Friday the Irish people took to the polling booths and voted in a new Government.

I was one of the few journalists in the country who wasn’t deployed to a count centre to watch the implosion of Fianna Fail play out in real time. My job’s a little on the specialised side so I watched the election unfold along with the rest on the country, on TV, radio and Twitter. They’re still counting the final votes today and in a week or so we’ll be watching different talking heads explaining why everything’s shagged on the nightly news.

It would be nice to believe that something will change, that this will be a much needed new beginning for a country on it’s knees, but I don’t believe in Santa Claus either. For the next few weeks ambitious noises will be made and great plans will be discussed but it remains to be seen what actual, real change takes place.

For very pertinent reasons, everyone’s focused on the economy at the moment but I’m not a political hack or a business journalist. I watch the cases that come through the courts, usually the criminal ones. The Dáil circus doesn’t often encroach on my daily work. That’ll continue to be the case with the new lot for the most part.

But there are exceptions. Every now and then I find myself writing about things that have happened over there. In recently years that’s usually been down to knee jerk pieces of legislation that need their rough corners smoothed by passage through the courts. Most recently there was the case of Rebecca French, a young mother of two, whose badly beaten body was found in the boot of her burning car. Four men were convicted of disposing of and trying to destroy her body but no one will ever be tried and convicted of her murder. Two men, Ricardas Dilys and Ruslanas Mineikas stood trial, but the charges against them were withdrawn. The trial judge ruled that they had been held unlawfully when gardai and a doctor became confused about the meaning of a clause in the 2009 Criminal Justice (Amendment) Bill, brought in to tackle gang land violence to much criticism.

There were quite a few bits of legislation with rough edges during Fianna Fail’s tenure, but quite a few more things were simply not done. The new government is going to have a lot of nuts and bolts governing to attend to, stuff that languished in the perennial to-do pile under the previous administration. There’s the situation that prospective adoptive parents find themselves in for a start. It took the last government years to get round to ratifying the Hague Convention, which rather sensibly ruled that intercountry adoptions could only take place where a bilateral agreement exists between Ireland and the country were the adoption is to take place. The problem is that they didn’t actually put in place any new bilateral agreements with the countries people were adopting from so people going through the arduous process are now in a legal limbo waiting for something to be done. The only country currently open for adoption is Bulgaria and domestic adoption isn’t an option, for reasons I’ll go into another time.

It would be nice to think that the new government will actually do some governing, rather than reacting to every hysterical front page with a piece of shoddy knee jerk legislation and putting everything else on the long finger but I’ll believe it when I see it. Until then I’ll expect to see the fallout passing through the courts, which aren’t so very far from Leinster House after all.

On Criticism…

22nd February 2011 / Abigail / 1 Comment

Nobody’s going to like everything you write. It’s one of those basic facts that come as a kick to the system the first time you get shot down in flames for putting an opinion into print. I still vividly remember the first time someone didn’t like something I’d written – it was many years ago on two weeks work experience for the Belfast Herald and Post. My editor had asked me to write a review of a book of poetry that had come in and, in my youthful enthusiasm I slated it. I think I used the word “pap”. These days I would never be so mean but back then I was just trying to make an impression.

Well I did make an impression. The poet was an avid reader of the paper, the local free sheet attached to the Belfast Telegraph. Within hours of the paper hitting people’s doormats he was on the phone. My editor made me take the call. The rest of the office burst out laughing as I turned puce and almost burst into tears because, to be honest, I had it coming.

These days I don’t do many reviews. I write about people’s lives, and more often than not people’s deaths. I try to be sensitive to the feelings of those I write about but I can’t do my job if I’m always pulling my punches.

I’ve worked in the courts for a long time now and I’m used to being careful about what I write. During a trial there are very clear reasons for doing this – it’s the law. We do our job under strict rules about what can be reported and what can’t. I must observe the accused’s presumption of innocence, make sure that any illicit googling from jury members doesn’t find anything prejudicial and I must respect the privacy of anyone under 18 or the accused or the victim of a sex crime. I can write anything that has been said in front of the jury as long as it’s within these rules. Until the verdict.

After the verdict – as long as it’s guilty- I can write with considerably more freedom. I can write about what happened when the jury were sent out of the court and any prior nefarious dealings of the convicted, as long as I get my facts right. I can also say what I think about the verdict or the trial. This is where people sometimes get upset.

I can only write what I see and comment on my own observations. I’ve sat through a great many trials over the years and watched an awful lot of men and women face the justice system. I’ve seen psychopaths and sociopaths and bewildered innocents, people who made a monstrous mistake that no backtracking could make go away, people whose worlds had ended in a split second. I’ve seen lovers and abusers, the dumped, the possessive, the controlling, those who acted in revenge, or defence, or rage. Like most of my colleagues in the courts, I can usually get a sense of how a trial will go at an early stage, there’s always one verdict that feels right, that seems to finish the unfolding story.

I will generally comment on a verdict only if it’s unexpected but when something doesn’t sit right it should be pointed out. The justice system is there for all of us and it has to work for people to have the necessary faith in it.

In the case of Marcio da Silva it was the defence that didn’t sit right. I’m not for a moment suggesting that da Silva’s legal team did anything but their job but the case they were putting forward was an uncomfortable one. I’ve written many, many times before about the fact that the only person missing from a murder trial is the victim. They are present as a collection of biological samples, a battered, fragile body – but everything that made them who they were in life is frozen in a frenzied, final moment, we hear other people’s memories, vested interests. We have no idea what their final thoughts were, how they felt as life slipped away, regretful, frightened, alone?

The accused is always in front of you during the trial but the deceased is a only blurred snapshot. They get some sort of voice during the victim impact statement, when their family have an opportunity to put the record straight and again on the steps of the court, with the flashguns blazing and the barrage of microphones. It’s the way it has to be to ensure that those accused of a crime maintain their presumption of innocence.

When the accused was emotionally involved with the deceased their silence is even more total. Women who have died at the hands of their partners are often portrayed in the negative. Before her husband was convicted of her manslaughter, Celine Cawley was painted the domineering bully. Josalita da Silva was the woman who manipulated men, used them to her own ends. The accused has the opportunity to put their case forward, the deceased does not.

So afterward, when the accused has been found guilty we can write about the deceased. Josalita da Silva died from more than 40 stab wounds. Marcio da Silva, her flat mate, had attacked her with no warning and no provocation other than her decision to spend the weekend elsewhere. She was sitting down, at her computer. He was standing at the kitchen counter by the knife stand. She was dying before she hit the floor.

The problem is that sometimes, when I say what I think, people don’t agree with me. That’s their prerogative of course but I draw the line when they question my professionalism or my integrity. I’m a long way away from slagging people off because I want to make an impression. I know I write about things that matter, life and death, I don’t do that casually. My job is to tell a story and I will tell it as I see it. I will take care to write within the law but I will not mince my words because they might offend.

Same as it Ever Was?

20th February 2011 / Abigail / 4 Comments

I went to Kilmainham Gaol last week and it got me thinking. There was one particular fact gleaned from the tour and a wander round the museum that stuck in my head. It was presented casually, in passing, intending to give an impression of what the prison was like in the dark days before prison reform, when the Famine had filled it’s walls to bursting point, a statistic to underline a point.

The fact was this, that in the mid 1800s 40% of prisoners at the gaol were women, compared to less than a quarter in gaols in England. The placidly informative board put this down to the fact that women in those days had less opportunities than their English counterparts, coming from a mainly rural society with less job prospects, with all the eligible men on the nearest boat away from the ravages of the Famine that had decimated the population in the 1840s. The only option for a lot of these impoverished, single women finding themselves on the mean streets of Dublin, was a life in prostitution.

The court cases reported at the time told a sad tale of degradation and extreme poverty. Infanticides were common among women who couldn’t see any other option. Those stories were dealt with quickly, written about without fuss, in maybe half a column of newsprint, sordid tragedies that didn’t really register on the public. Familiarity really does breed contempt, or at least a growing lack on interest.

That much hasn’t changed. While killing a child would guarantee headlines in these less desperate times there are other crimes that happen too often to guarantee many column inches. The bulk of the cases that pass through the Central Criminal Court, for example, would be rapes of some form or another. But you won’t see that reflected in your morning, or for that matter evening, paper. Rape cases are difficult to write up, strict laws to protect the privacy of both the victim and the accused are in place until a verdict, and in the case of incest, where identifying the accused would identify the victim, after it as well. Copy doesn’t read well when it’s peppered with indefinite articles and, no matter how skilled the writer, there really isn’t any other way of doing it.

So there are a lot of cases that are tried and convicted without any comment. It takes a crime of particular brutality, notoriety or sickness before the press bench will approach full capacity. It happens the most with the sex cases. When I was working for the agencies that send court stories out to all the newspapers the sheer torrent of similarities was one of the most shocking things about covering a rape case. The details in the opening speech of the latest child abuse case had a horribly familiar ring. The vulnerable child, singled out at and violated. The age the assaults would begin would often be similar, even the details of the molester’s patter and approach, and of course the devastation that would follow, the weight of a dirty secret, the sleepless nights – all the same, or similar.

In the end it was the familiarity that became most sickening – and so you won’t read about these cases with your morning coffee. It’s the same with murder. There have been headlines about the knife crime epidemic for the past couple of years but once again it’s the similarities between the cases that follow each other head to toe through the courts all year, that hit home. The waste of young lives, brought to an end so thoughtlessly when drink and drugs and sharp implements became a fatally volatile mix.

Walking round the museum in Kilmainham Gaol I was struck by how familiar it seemed. We’ve come a long way in the last 150 years but not far enough. There are still people who are desperate, who live lives that they feel have no real value, who will try to survive by whatever means they can when they struggle to keep their heads above water.

I was reminded in particular of Joselita da Silva. She was a victim rather than a culprit but at the trial of the man who stabbed her to death last month, an old story was hung out for the jury to peruse. They didn’t pay any attention and convicted Marcio Goncalves da Silva (no relation) of her murder.

The case didn’t get as much publicity as it might. It was around the time when the government crashed and burned so attention was elsewhere, but it may have been a story whose familiarity would have brought yawns from editors on all but the quietest news day. Joselita was Brazilian. She and her husband had moved to Ireland at the height of the boom, hoping to make enough money to go home and make a new life for themselves and the three children they had left behind.

But the Celtic Tiger didn’t treat Joselita very well. Her marriage had broken down soon after she arrived in the country and she soon found herself struggling to survive in the gold tinted wonderland that was Ireland before the bust. She found work doing various cleaning jobs, or working in fast food shops but the work wasn’t regular and it was hard to make ends meet.

Joselita was a bubbly, outgoing woman. She got on well with everyone but there were those who whispered that she was maybe too friendly with certain men. During da Silva’s trial the court heard about the married man whose wife had tried to have Joselita deported, or the local man, many years her senior, who had showered her with expensive gifts, a laptop, tickets home to Brazil, the subtext being that he had also bought Joselita, the old transaction, understood the world over. Ultimately it doesn’t matter what she did. She didn’t break any laws and was perfectly entitled to live her life how ever she chose. But her family were subjected to this tarnished picture of her, presented by the defence in an attempt to justify to some extent, da Silva’s actions, when he stabbed the woman he said he loved more than 40 times.

The defence always maintained that Marcio da Silva had not killed Joselita in a jealous rage, but it took the jury a few short hours to find him guilty of murder. But the image that stayed behind when the trial was finished was of an Ireland that hadn’t moved on as much as we would like to think. A land where all the glittering gold was really brass and the veneer of a kinder, more civilised society was paper thin. Sadly there are some things that will probably never really change. Until then the museum in Kilmainham Gaol will tell stories that trigger that horrible familiarity, rather than being a dead relic of a more brutal time.

A Line in the Sand

23rd November 2010 / Abigail / 0 Comments

This Thursday, November 25th, is the International Day for the Elimination of Violence Against Women. It marks the start of a global campaign of 16 Days of Action. Here in Ireland the campaign is being spearheaded by Women’s Aid with events running around the country.

Working in the courts you see the grim effects of this violence on a daily basis. Any regular readers of this blog will know my views on sentencing for sex crimes and on the men who murder the women they are supposed to love. There has to be a proper line drawn in the sand to show that violence against women is utterly unacceptable. As long as men like Anton Mulder think they can get away with killing their wives with nothing more than a slap on the wrist that message hasn’t got through.

So many of the trials I’ve covered have been of men accused of killing women. Colleen Mulder, Karen Guinee, Rachel O’Reilly, Siobhan Kearney, Jean Gilbert, Celine Cawley and Sara Neligan all died at the hands of those who were supposed to love them. But it’s not just loved ones that kill. The list of victims can be added to, Melissa Mahon, Manuela Riedo, Mamie Walsh, Rebecca French; a litany of women killed by men. There are countless other women who can’t be named. Women who lived but who were subjected to such brutality that their lives have been shattered.

I’ve written a post over on The Anti-Room blog on the subject of sentencing for sex crimes. It’s an important issue. We need to draw that line in the sand and say it’s not acceptable if it’s ever going to stop.

A Question of Self Defence

8th November 2010 / Abigail / 5 Comments

Brendan O’Sullivan’s family started to sob as the jury filed back into the courtroom. O’Sullivan himself glanced over at his wife Claire whose eyes never left him as the verdict was read out, even as the tears started to stream down her face.

O’Sullivan, a 25-year-old father of two little girls, with an address at 10 O’Gorman St, Kilrush, Co. Clare had shot his neighbour Leslie Kenny four times in his own front garden. Kenny died at the scene. He had one shot to the right side, another to his right hip and, after O’Sullivan had reloaded the shotgun, shots to each knee.

O’Sullivan’s defence was that he had acted in panic to protect his wife and daughters after Kenny had threatened to slit their throats and burn the house down on a previous occasion. The gun, it was heard during his week long trial, had come from his cousin, taken in because she feared her estranged husband would use it to kill himself.

Kenny had a string of previous convictions, 82 of them for crimes like burglary and assault. He had been arrested on numerous occasions for the possession of dangerous weapons including knives, a hammer and a syringe. In the euphemistic terms often heard in court he was “known to gardai”. Witness after witness testified that he brought fear to the heart of the Kilrush community, threatening people refused to share their prescription drugs with him or who crossed him in any way. He was an “unpredictable” character, widely known and widely feared.

O’Sullivan’s sister in law had testified for the defence that Kenny and his girlfriend had climbed unbidden into the car in which she was sitting with her partner, outside the AIB in Kilrush. He had threatened to slit her nieces’ throats, she told the jury, and to pour petrol through the letterbox of the O’Sullivan house and light it while the family slept.

It’s a hard thing, here in Ireland, to speak ill of the dead. The instinct to gloss over old faults once life is extinguished is hardwired into the Irish psyche. But with this trial it had to be done. Kenny had to be painted as black as possible if O’Sullivan’s actions were to be seen with any compassion.

The prosecution case didn’t seek to mitigate the character of Leslie Kenny but argued that no matter how bad a man he may or may not have been, his death was not lawful and more than that, was premeditated and with murderous intent. They said that the shotgun Brendan O’Sullivan had got from his cousin was not being minded as a philanthropic act but was there for self defence. They said that O’Sullivan had lured Leslie Kenny into his front garden that June morning and had taken the opportunity to murder him.

They disputed the defence theory that the placing of the shots suggested that O’Sullivan had been unused to guns and had not expected the kick of the gun which took his shots to their mark. They said that the position of the wounds was consistent with O’Sullivan shooting as Kenny got up after the first shot and kept coming. Shots to stop an aggressor but not aimed to kill.

It took the jury less than three hours to come back with their verdict. Guilty of murder. There was a shocked silence in the courtroom as the verdict was read out then the sobbing intensified as O’Sullivan’s family and friends clustered around him to hug him before he was lead away to start a life sentence.

The decision was perhaps not such a surprise. While anyone could understand O’Sullivan’s fear for his young family, he had reloaded the gun, even if he had only shot Kenny in the knees with the second two shots. The legal crime of murder is defined in the negative. In Irish law an unlawful killing is not murder unless there is an intent to kill or cause serious harm. With that intent there is an assumption that the accused knew the logical and probable results of his or her actions.

Even so it wouldn’t be the first time an Irish jury had acquitted someone who defended their home with extreme lethal force. The case of Co. Mayo farmer Padraig Nally is the most obvious one that springs to mind. Back in 2005 he was convicted of the manslaughter of traveller John “Frog” Ward. Nally had been terrified of Ward and had sat waiting for him with a loaded gun.

When Ward came onto his farm he snapped. He beat Ward with a stick “like a badger” then shot him as he limped away. He was sentenced to six years in jail.

But in October 2006 Nally’s conviction was quashed with the appeal judges ruling that trial judge Mr Justice Paul Carney had been in the wrong when he had not allowed the jury to consider a defence of full self defence and had refused to allow them to reach a not guilty verdict.

The jury at the subsequent retrial did in fact find Nally not guilty and he is now a free man. Earlier this year the government introduced new legislation that would allow the public to use “justifiable force” against an intruder.

O’Sullivan’s case might not have fallen with a defence of the home scenario but it does share certain characteristics with the Nally case. Certainly, albeit having come into the trial late, I would have expected a manslaughter verdict rather than murder. Obviously the jury disagreed.

Just before lunch today there was an indication of the way they might have been thinking then they requested certain pieces of evidence to be brought into the jury room. They asked for a paper target found at O’Sullivan’s house and a mobile phone that had been found broken in a garda search during the investigation.

The problem was that neither the target nor the mobile phone were actually evidence in the case. They had been gathered up and tagged as part of the garda investigation but did not form part of the prosecution case. Once the jury were told they couldn’t have the items they were looking for and where sent to lunch the legal arguments began.

The defence wanted to know how on earth they had heard about the paper target, since it had not been in evidence. They feared that it showed the jury were speculating on events in a direction the prosecution case had not gone and so were not heading towards a verdict based on the evidence in the case. Just after lunch, before the jury were brought back to be formally sent to their deliberations, John Phelan SC, the defence senior counsel asked the the jury to be discharged.

Mr Justice Patrick McCarthy refused the submission and said that the jury should be trusted to do their job. He had earlier refused to recharge the jury on the options open to them, those of murder, manslaughter and acquittal as the defence felt that the jury would not understand from his initial charge that the option of acquittal was open to them.

It remains to be seen whether there will be an appeal and if there is whether it will be successful but it’s hard not to see certain similarities with the Padraig Nally case here.

Brendan O’Sullivan’s family looked utterly devastated at the news, no matter how hard the reloading of the gun might have been to explain to any jury. Outside the courts a short while after the verdict the family bumped into a small group of jurors, leaving after performing their civic duty. There were angry scenes as the two groups waited for traffic lights to change from green to red. Family members shouted at the jurors “He’s not guilty”. The jurors looked shaken and hurriedly backed away from the crossing. As the family moved away the jurors were in a huddle talking to one of the court gardai. Several of them were visibly upset.

They’ve come to their verdict and presumably did so in accordance with the vows they had charged. We have very strict rules in place to ensure that the jury’s verdict is inviolable and that’s as it should be. But when a jury reach a unanimous decision on a murder conviction in such a short time it’s for the rest of us to wonder how they reached that decision. It remains to be seen what an appeal brings but one thing an appeal will not do is question that decision. That’s the justice system we have.

Responsible Parenting?

7th November 2010 / Abigail / 0 Comments

Almost two years ago Eamonn Lillis killed his wife. He hit her over the head with a brick and then ran upstairs to fake a robbery to explain her wounds, while his wife, former model Celine Cawley lay dying on the frozen decking outside the kitchen.

He would later say in court, the highest profile murder trial this year, that he had acted like this to protect his daughter. He didn’t know his wife was so gravely injured, he said, and after a marital row had turned to violence both their first thoughts were for their daughter. They wanted to explain the marks from the fight on both their faces and so jointly decided to concoct a fictitious burglar.

Whatever went on that frosty morning just before Christmas 2008 we will never know for certain. We only have the word of the man now serving a six year sentence for killing his wife, who clung to the story of the masked bandit for far longer than good sense would dictate.

Now Lillis’s parenting is hitting the headlines again. It’s the latest stage in a an action started back in June by Celine’s brother and sister, Chris and Susanna Cawley. Under Irish law Lillis is not allowed to profit from killing his wife so loses his right to inherit her share of any jointly owned property. The Cawley’s are trying to ensure that he loses the right of his own share in that property, with the whole lot reverting to the couple’s daughter when she turns 18 later this month.

My heart goes out to that girl. This should be an exciting time for her, a milestone. But instead she has to watch her relationship with her only surviving parent raked over by the media and the general public.

This week the Cawley case took another step forward and was met by Lillis’s rebuttal. Chris and Susanna Cawley want Lillis declared legally dead so that his half of any shared assets will go directly to his daughter. But Lillis is fighting back. In an affidavit sent from prison he said he had discussed with his daughter what would happen when he got out of prison and that he had no intention of selling the family home of Rowan Hill, on Windgap Road in Howth.

“However the intention of my wife and I in placing the property in joint names as a joint tenancy was that our daughter would succeed to the property on the death of both of her parents. This is what I believe should happen.”

He added that she had been visiting him in prison and he intended to continue providing for her. “I want to return to the family home as her parent not as a sort of tenant at will or a co-owner sharing a jointly owned property with her.”

Providing for his daughter would be difficult he noted, since his manslaughter conviction rendered him virtually unemployable. "Many of my friends and acquaintances have distanced themselves from me. My reputation has been destroyed. My livelihood has been destroyed."

Because of this, he explained, he would also need the rental income from another house the couple had jointly owned in Sutton. Which, when added to half the proceeds from the sale of Toytown Films, the production company set up by Celine, should provide a sufficient income to allow him to keep parenting in the manner to which he has become accustomed.

Lillis insisted that losing his assets would be a punishment too far and that he had suffered enough. “Prison is a very difficult and alien world for me. However the greatest punishment is the geographical distance between myself and my daughter and the diminution in our relationship.”

It’s hard not to read Lillis’s words fighting for his assets without wondering whether his concern is for his daughter or his lifestyle. There was no indication during the trial that he and his wife were anything other than devoted parents to their only child. But she would be able to provide for herself once she hits 18. She already has her mother’s half of everything. She also has a very loving family behind her who will stop at nothing to protect her interests. Losing your money, when it’s taken away from you, doesn’t make you a bad parent, but this seems to be what label-conscious Lillis feels.

Anyway, the case is still ongoing. There’s been a three week adjournment but it will be back in the headlines before long. This is one story that will never really go away, sadly for all concerned.

A Menace to Society?

12th August 2010 / Abigail / 1 Comment

The first photographers arrived outside Arbour Hill Prison in Dublin at some point in the middle of yesterday afternoon. Their numbers swelled as the afternoon and evening wore on as they were joined by their colleagues and crime reporters from the various media outlets. By this morning there were around 30 eagerly awaiting the release of the man who is currently Public Enemy Number 1, convicted rapist Larry Murphy.

Shortly before 10.30 the doors of the prison opened and Murphy walked out, ignoring the press and the few assembled members of the public, to get into a waiting taxi and drive away into something that doesn’t remotely resemble obscurity. Apparently he managed to lose the following press posse but he won’t avoid them for long. According to reports on Twitter one of the Irish tabloids has posted his photograph all over his native Baltinglass asking for anyone seeing him to call the paper with the details.

Murphy’s release has been a national obsession for days now. While the flames of media interest might have been somewhat fanned by the summer lull in newsworthy stories it’s a valid cause for concern. Even if the crowd waiting outside Arbour Hill prison might have called to mind Chris Morris’s notorious Brass Eye Paedophilia Special (which featured material about a child molester disguised as a house and an angry crowd outside a prison tearing another paedophile to bloody pieces – in the name of satire rather than news coverage I hasten to add) Murphy’s release is a frightening prospect.

Let’s take a moment to go over why he served 10 and a half years in jail (and I’ll get to the length of time he served in a bit). He abducted a woman he had never met, bundled her into the boot of his car, took her up to the Wicklow Mountains and raped her repeatedly. When he was surprised by two huntsmen, who miraculously arrived and saved the woman, he was trying to suffocate his victim with a plastic bag.

He was sentenced to 15 years in prison but because of the clause in Irish law that allows any prisoner the particularly juicy carrot of between a quarter and a third off their sentence if they keep their nose clean in jail, he’s out after 10 and a half. Murphy refused to take part in any kind of rehabilitation in jail but that wasn’t part of the deal. So he’s out and the press are on his tail.

From now on he’ll have to tell gardai where he is and what he’s doing, but since there’s nothing like America’s Megan’s Law here in Ireland the general public won’t share that information. Granted there’s a very good chance that if he so much as sneezes for the foreseeable future it’ll be on the front pages of the next days papers but that interest will wane as soon as the next story comes along. He’ll make the front pages if he strikes again but that isn’t going to make any of us sleep better in our beds.

Murphy isn’t a unique case. There are plenty of vicious rapists serving time in Irish prisons and some are even up for release soon. Back in June one of them, Michael Murray, who raped four women over six days in 1995, actually went to the High Court complaining that he couldn’t lead a normal life because of the constant hounding by the press. Murray had undergone counselling in prison but even his own counsel admitted he was an “abnormal menace” to the community. Murray was unsuccessful in his action but you only have to look at the criticism that gets thrown at the press with every high profile trial, or even, as I’ve found out, any book about a high profile trial, to see that it’s by no means a given that any future case would get the same ruling.

Yes the press get excited about people like Murphy and Murray getting out of prison. Yes sometimes the coverage can get a little over the top. But ultimately the press are only doing their jobs. Things that make people feel unsafe make good stories and sell newspapers and I’m sure over the next few weeks we’ll hear arguments for some of the more shameless red tops that a public service is being done.

The problem is that it’s really not their job to keep an eye on dangers to society. It’s something they’ll do but for very different reasons from the ones such a job should be undertaken for. I’m a great believer in an ethical press and think that a strong media is necessary to protect society from corruption and injustice but I’m also a realist. There will always be other reasons why something like this makes a good story. A lot of those reasons have very little to do with altruism or ethics. Do this job long enough and the cynicism comes naturally.

The people who should be keeping an eye on people like Murphy are not the press but the gardai. The problem with that is that with the best will in the world, the gardai are unlikely to be up to that particular job. They can’t shadow Murphy 24 hours a day, 365 days a year and they’re going to have to rely on him to cooperate with them to keep tabs on him any other way.

The real problem with this mess is that this point has been reached so soon. Ten and a half years is not a long time for such a brutal rape – but then rape sentences in this country are usually on the short side. I’ve written here at length in the past on the subject of rape sentences and once again I’ll say they are too short.

Generally speaking it’s only the very brutal rapes that make the headlines. While the media will be all over this case, where an Irishman has carried out a brutal attack on an Irish woman, they have been a lot less quick to cover equally nasty rapes involving an accused and a victim from outside Ireland. I’ve covered enough rape trials for news agencies to know how depressing it can be to write copy about horrific events day after day and send them out to every newsroom only to have your work ignored time and time again. Unfortunately familiarity breeds contempt. Newspapers want news and court cases tend to be too repetitive to give that newness. As a reading public we won’t read the same stories over and over again so why should the papers publish them?

There’s also the issue of sensitivity of course. The fact that rape trial reporting is a tricky business with the need to ensure anonymity of both accused and victim for the duration of the trial at least, doesn’t help matters. Consequently it tends to be only the most brutal, the most scary and predatory attackers that make the headlines. Only the most shocking cases. There are a great many more trials that go on without a murmur and whose sentences are not remarked upon.

When someone like Murphy gets out after ten years there’s an outcry, and there should be but this is a problem that is there all the time. Rape sentences are frequently under ten years. Life sentences are rarely given and when they are more often than not over turned on appeal. That needs to change. Someone who kidnapped a woman and threatened to kill them should have been sentenced to a lot more than 15 years. If someone’s a menace they should be taken off the streets until they are no longer a mess.

Instead we offer carrots to people who don’t deserve them, a light at the end of the tunnel for people who only deserve to see the light from an oncoming train. I’m thinking in particular of Gerald Barry, sentenced to two life sentences last December for the rape of a French student less than two months before he went on to brutally murder Swiss student Manuela Riedo. When he was handing out sentence Mr. Justice Paul Carney mentioned the quarter off saying that Barry was a perfect illustration of why it should be discretionary.

Surely it’s time we gave judges the power to set the upper limit of a sentence for serious crimes? The Court of Criminal Appeal would always be there but why can’t trial judges decide, like their English counterparts, that someone convicted of rape or murder should serve a minimum amount of time behind bars. You will never hear of someone being sent to prison for “at least 35 years” from an Irish court because the judges are not allowed to do that. They pass their sentences according to very strict rules. I can see why those rules are there but there has to be more flexibility to punish those guilty of the worst crimes this society has seen. There would still be the freedom to decide on a case by case basis. If someone is found guilty of an inconceivably horrific crime the courts should be able to ensure they never see freedom again.

If someone is going to remain a serious threat to society they should not be allowed back into it, even if that means holding them in continuing custody “just in case”. I’m well aware of the human rights side of this, and the fact that our prisons are already overcrowded and our courts are working more efficiently than ever, but beside all of this there has to be justice. There are certain crimes where the punishment should be life and there should be the freedom to ensure that life does mean life. As it is we will see the same circus as we have today the next time someone particularly nasty walks free while still in the prime of life. It’s not up to the press to shout about the unfairness of it all, it’s something that needs to be changed as a matter of policy, not a kneejerk reaction or vote catching sop. Until then there will be too many victims who feel that justice wasn’t served and too many women afraid of real bogeymen.

The Books

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