Tag: Paul Carney (Page 1 of 2)

The politics of juries – a strange beast indeed.

24th June 2017 / Abigail / 0 Comments

The selection of the jury in the case of Rex v O’Cioghly Armagh, 1798 Image from Findmypast.co.uk © Crown Copyright Images reproduced by courtesy of The National Archives, London, England

Over the years I’ve sat through a lot of jury panels. I remember Monday mornings in the Central Criminal Courts in Dublin when Mr Justice Paul Carney would oversee the selection of the juries for the trials that were due to start. Court 4 would be jammed and stifling hot, whatever the season, as jury panellists, various accuseds, victims’ families, barristers, solicitors, gardai and journalists all jostled for elbow room in the body of the court. Carney would often arrive late and was brusque with the excuses of panellists who were reluctant to do their civic duty. The selection process takes time, each person called has a chance to excuse themselves and both prosecution and defence teams have the right to reject anyone they don’t feel will be sympathetic. In a modern trial, they don’t say that reason out loud so you have no way of knowing if you’re on that jury panel if you have been rejected because your hair was too long, too short or some unconscious expression observed by the barristers has convinced them that you will behave in a certain way.

Panellists are also asked if they have any connection to the trial that they could be selected for. If they live near the place where the crime took place, know the accused or the victim or their families, have strong views about the case in any way. Of course, there’s no guarantee that a jury member will always confess a bias but the extraordinary thing about juries is that, whatever their makeup, once they are twelve, and once they have retired to their room, they tend to take things very seriously indeed. Paul Carney’s jury panel sessions were a tradition in themselves. Each week he would issue the same warnings, threaten the same threats of the consequence of not being straight. He would be sympathetic to students with upcoming exams but less so with executives or those in the financial services who would not do their duty. There was a formula to the process and perhaps this was what shapes the juries into the entities they become.

I’ve written a lot about the trial of William Bourke Kirwan, an artist who killed his wife Maria on Ireland’s Eye off the coast of Dublin in 1852. You can read about the case in more detail in posts here, here and here. In that case, the jury actually felt the need to defend their position in a letter to the press. Even though I’ve seen some pretty odd and occasionally downright mad decisions by juries over the years, I’ve never seen a case where they would feel the need to justify their decision. The only exception would perhaps be the Eamonn Lillis case, subject of my second book, Death on the Hill, where the jury explained exactly how they had come to their decision of manslaughter and, possibly because they felt there might be speculation, were absolutely specific that they had decided Lillis was guilty of manslaughter because the prosecution had not proved the case for murder.

Juries interest me, and I’ve often wished I could sit on one simply to see things from the other side, so there’s one record set among the UK National Archives crime records that fascinates me. It’s a little bit outside my period – I usually research Irish courts between 1830 and 1860 or so – but it’s one I keep going back to. It’s a ledger hidden in the rather prosaically named HO130 collection, basically the 130th box of the Home Office records. The fact that it exists I still find amazing. It’s a little piece of colonial history and an insight of how things are done after a rebellion. In these dark times we are living in, perhaps it’s an insight that’s useful to have…

The jury selection was for the trial of United Irishman Father John James O’Cioghly of Loughgall, in County Antrim. Father O’Cioghly and others were on trial for their part in the rebellion of 1798. The jury panel was made up of landed gentry. There were no reluctant students or bankers in this lot. What’s so extraordinary about this record is that it is a record of the silent discussions I watched every Monday in Court 4 in front of Judge Carney, the decisions by prosecution, defence and the magistrate himself on each individual juror. This seems to be a document that was never meant for outside viewing. Justifications for people’s suitability or not are blunt and sometimes brutal.

Take number 22, Sir Richard Glode, for example. The notes comment that Sir Richard should be enquired about. He was strongly anti-aristocratic and this was possibly because he was “exceedingly low born” even if he didn’t show it.

Entry for Sir Richard Glode one of the prospective jurors in Rex v O'Cuighly

Image from Findmypast.co.uk © Crown Copyright Images reproduced by courtesy of The National Archives, London, England

John Farnaby was not to be trusted. One of the comments notes that he had recently taken his wife’s maiden name of Lennard (sic) – almost certainly the Irish surname Leonard. He was definitely for the cause of a united Ireland.

John Farnaby had recently taken the name of his Irish wife

Image from Findmypast.co.uk © Crown Copyright Images reproduced by courtesy of The National Archives, London, England

Farnaby might have been tainted by marriage but George Russell had no such excuse. He was “one of the worst of the panel” according to the notes, having actually given £500 of his own money to the United Ireland cause.

George Russell who gave £500 to the cause

Image from Findmypast.co.uk © Crown Copyright Images reproduced by courtesy of The National Archives, London, England

Luckily for the Crown, eager to make sure O’Cioghly and his compatriots served as a warning, there were also men like Robert Jenner who, the notes reassure, “if eleven would acquit, he would convict.”

Image from Findmypast.co.uk © Crown Copyright Images reproduced by courtesy of The National Archives, London, England

The jury selection for the case of Rex v O’Cioghly is a rare insight into how a jury is selected, or in this instance possibly stacked. I’m always amazed that such things survive but the historian in me is delighted they do. The journalist in me is equally delighted as this is an insight, however much removed, of a part of the story I could never observe. I’ve been unable to find a trial report for the O’Coighly trial as this was a time when Irish journalism was in its infancy and most newspapers did not yet cover Irish news. Either the jury was well stacked or the Crown’s case was watertight though as Father O’Cioghly was executed on June 7, 1798.

The Devil in the Red Dress is Free at Last

12th September 2012 / Abigail / 0 Comments

So Sharon Collins is out of jail. She has served almost four years of a six year sentence for soliciting someone to kill her lover PJ Howard, and his two adult sons Niall and Robert. Today’s papers are speculated will she or won’t she reunite with PJ, who stood by her even as the emails detailing exactly what she was considering having done to him were read out in court. He never believed the case against her and was seen visiting her in jail but the camera-shy millionaire has been notable by his absence recently.

That’s all very well and I’ve nothing against a good old-fashioned romance but I’m more interested in the fact she’s out after serving less than four years for trying to have three people killed.

Now, obviously, nothing is as simple as that sentence might have made it appear. Collins was initially convicted on all six counts against her. Three of conspiracy to murder and three of soliciting someone to murder the three Howard men. Her co-accused Essam Eid, who’s currently serving a 33 month sentence for his part in an almost identical scam in resulting from another femme fatale trying to secure the services of phantom Mafioso Tony Luciano through the decidedly dodgy hitmanforhire.net. In the American case Eid was convicted of extortion. Here in Ireland the jury failed to convict him on the conspiracy charges, finding him guilty on two counts of handling stolen goods. Eid himself was surprised with that outcome. But it was that verdict that made the three counts of conspiracy impossible to stick on Sharon Collins, after all, it’s rather hard to conspire on your own. They were quashed on appeal last year.

Eid was released in 2011 and was promptly extradited back to the States to face the other charges relating to the hitmanforhire website (I’ve blogged on the lot if you take a look in the tags at the top of this post – and of course, for further detail there’s always my Devil in the Red Dress but enough plugging). He had been in jail since his arrest at the time of the Ennis debacle back in September 2006. So he would have served a little over four years.

Now Eid was convicted of handling stolen goods. The biggest thing he handled was a laptop and a computer. The laptop he used to check his email and the computer he dumped in the bushes outside his hotel but that’s a whole other story. There was also a map of Irish money that he’d just liked the look of, if memory serves me correctly.

Sharon Collins on the other hand handed over fifteen grand to see the love of her life and the two lads she had been a mother figure to for years, killed. She was quite explicit about how she wanted them killed. There were a LOT of emails between lyingeyes98@yahoo.com and Tony the hitman Luciano. They were very flirty emails and lyingeyes98 had no qualms about speculating how the three men were to die. PJ could be pushed out of a window she suggested, as she sat in the house she shared with him (let’s say). Robert and Niall could be poisoned by a good-looking honey trapper perhaps or their car could be rigged to crash on the winding roads of County Clare. She was never short of possibilities.

The jury believed that lyingeyes98 was none other than Sharon Collins and I agree with them. So that means flirting with someone who you, presumably, truly believe is a hitman and planning precisely how you want the hit carried out on three people who trust you and, also presumably, love you, is the same as handling a dodgy laptop and a poster of Irish bank notes. In fact Sharon Collins served less prison time that Essam Eid. She’ll probably serve less than Marissa Marks, her counterpart on the other side of the Atlantic, who lashed out at an ex’s new girlfriend in true adolescent bunny-boiler fashion but was quick to buckle when she was confronted with what she had done.

Sharon Collins always denied what had happened. She still does. It was all down to a psychopathic creative writing tutor according to her. The mystery woman who teams of private eyes have failed to track down – Maria Marconi.

Sharon Collins benefited for time off for good behaviour, a laudable aspect of the Irish penal system but one that also guarantees a third off the sentence for any-well behaved rapist, murderer or child molester. It makes the frequently low sentences here even lower on a regular basis.

Personally I think Sharon Collins should have served longer. Four years, not even, seems a ridiculously short amount of time for the plot she seemed to take some relish in plotting. It might not have been carried out, but she didn’t know that when she sent the emails, talked on the phone or sent the money. The fact that she ended up a patsy was a cautionary tale but not really a mitigating one.

But this is simply another case of Irish courts not handing sentences that seem the right weight. It’s something we see all the time with rape cases. Whenever I sit down to write about this issue I’m reminded of two particular cases. The first was Eamonn Cooke, the notorious paedophile and one time owner of pirate station Radio Dublin. I covered his one of his trials when I first started working in the courts back in 2006. He was convicted on rather a lot of counts of sexually abusing two little girls in the 70s. The girls in question had been six or seven when the abuse started. Because of the nature of the abuse, when it came to sentencing, the maximum sentence on each count was two years. The judge in that case, whose name unfortunately escapes me, had spent a lot of time working in the European Court of Human Rights. She said at the sentencing that she wanted to make each of these two year sentences consecutive rather than concurrent. This would have meant that Cooke would have been sent to jail for around 100 years. Of course the judge was quickly reminded that such things aren’t possible in Irish courts and the sentences would have to run concurrently after all. The judge was not happy.

The other case was rather better publicised. Gerald Barry, who killed Swiss teenager Manuela Riedo in Galway, was up on rape charges some time after his conviction. The rape was an unconnected case which had happened a short time before the killing. In that case, given the circumstances, Judge Pail Carney, sentenced Barry to life, rare enough in rape cases here, but it was his sentencing speech that was extraordinary. Judge Carney talked about this automatic third reprieve and said that while it was laudable that we should use a carrot rather than a stick to encourage good behaviour, the lack of flexibility meant that even someone like Barry had that carrot before them.

We do not have a system in Ireland where judges can recommend a minimum time served. Sentences are decided according to a strict sliding scale that will be held up to minute examination in the Court of Criminal Appeal. They are balanced by years of case law, fitted onto a complex graph of previous crimes that stipulates the gravity and weight of any individual case. But what happens when a case is extraordinary, unique. It happens more than you might think. Judges do not have the flexibility to “make an example” of someone, whatever if might seem from the press coverage. Sentences that do not fit on the rigid scale will be quickly overturned on appeal. So we’re left with a society where a husband can think it’s worth killing his wife because the sentences are so light (as was the evidence with Anton Mulder) or rape sentences of life imprisonment are so rare that it is always a cause for comment.

It’s good to have a system based on protecting the innocent man accused of a crime he did not commit. We should be wary of hanging judges and justice in name only. But we should also have a system where the victims of crime can feel that justice has been done. I’m not always sure we’ve quite got that one right.

A Matter of Respect

13th February 2012 / Abigail / 0 Comments

Recently in the Central Criminal Court a woman who had accused three men of raping her and falsely imprisoning her was asked to step down from the witness stand to identify each one. According to a report in yesterday’s Sunday Independent, from Conor Gallagher, the only journalist covering the trial, the woman was shaking and so visibly upset that barristers on the case had worried she would collapse.

The next morning she did not attend court. I wasn’t covering the trial myself but I was in court that day on a different matter. I heard gardai approach Mr Justice Paul Carney, the trial judge, and tell him that the woman was missing. She had left a note for her partner, they said, telling him she could not face going back to court, that she was terrified.

Handing down a bench warrant for her arrest Judge Carney commented that he would now have to discharge the jury and if she ended up spending a considerable amount of time in prison until a new trial could go ahead, “that’s her fault.” At the time I didn’t really think anything of it. Judge Carney has form when it comes to taking a dim view of witnesses not attending court. I’ve seen him send both men and women down to the cells in contempt of court on more than one occasion. I’ve never seen anything like this happen with the main prosecution witness in a rape trial though.

At home that evening, the woman took an overdose and was rushed to hospital. On her release she was arrested and taken to the holding cells in the courts. She was released after a few hours.

The three men were subsequently acquitted after a two week trial.

Before I continue I’ll make a point. Shocking and all as the image of a rape victim forced to face her attackers is, that’s not what happened in this case in the eyes of the law. The word “alleged” carries weight. She was an “alleged” victim, just as the accused men were “alleged” attackers. It’s not just careful journo speak. We live in a country where there is a presumption of innocence at the heart of the legal system and until someone is convicted of a crime they are innocent and victims can never be more than “alleged”.

This particular story, unsurprisingly, caught fire on Twitter. By evening there were outraged calls for the judge’s impeachment and an overhaul of the justice system. While I agree that pushing a witness to the point of collapse is neither desirable nor creditable in a compassionate justice system, I think that calling for a judge’s impeachment is a step too far (although such things are often called for on Twitter).

You see, I’ve written about the various rulings and comments of Mr Justice Paul Carney on numerous occasions. He’s one of the few judges to have his own tag on this blog. But while I’ve written about him handing down a suspended sentence for a rape or jailing a reluctant witness, I have also written about him handing down a life sentence to a child rapist (subsequently reduced on appeal) or pointing out that penalty available is not sufficient for the heinous crimes (sentencing Gerald Barry for a double rape that had occurred mere weeks before he brutally killed Swiss student Manuela Riedo). He’s one of our most outspoken judges but I don’t think he’s one of the worst – the opposite in fact. I don’t agree with everything he says but I respect his knowledge and application of the law.

The problem here is far bigger than the insensitive actions of a single judge and at it’s root it all comes down to respect. I accept that rape victims, or the families of murder victims, cannot really have a place in a fair justice system. Trials should be decided on the weight of evidence and that’s not really somewhere that emotion can go. That’s why it’s the state, society, that is the prosecuting side. While a conviction might provide catharsis for a victim the healing can only really take place afterwards. Of course too much detachment can lead to brutality. We should never forget that among the “alleged” victims are actual victims and people in a fragile state should be treated with humanity, respect and gentleness. There has to be a way of doing this without sacrificing the presumption of innocence.

But it’s bigger again. Over the past few weeks there’s been a lot of discussion about sex crimes for one reason or another. It’s 20 years since the X Case shook Ireland to it’s core as Kathy Sheridan wrote in the Irish Times a week ago. A lot has changed in those 20 years, we’ve seen boom and bust, but when it comes to sex crimes and the punishments those guilty receive we’ve only taken a few baby steps. The man at the centre of the X case, who had abused a 12-year-old girl leaving her pregnant at just 14, received 14 years for that particular crime – reduced to four on appeal. In 2002 he received a mere 3 years for the assault of a 15-year-old girl he had picked up in his taxi. Ridiculously low sentences yes, but ones you’d still see today. An average rape sentence here is around 8 years maximum. It’s usually less.

In December last year the Limerick Leader refused to name the 21 men prosecuted for soliciting prostitutes. They had no problem naming and printing photographs of the women prosecuted for prostitution at the same time.

There have been numerous calls to reform the laws on prostitution, especially since the excellent Prime Time documentary Profiting from Prostitution earlier this month. Decriminalising the girls and women forced into the sex trade would definitely be a step forward but destroying the demand by criminalising the thoughtless, ignorant men who think it’s ok to pay for sex with a woman who may be forced to do what she’s doing, is also vital.

As long as we let the attitude persist – and it does – that men are somehow not altogether responsible for their actions and women failing to recognise that are walking themselves into trouble, we do not live in an altogether civilised society. It’s a lack of respect to both sides. I’ve lost count of the number of times where female murder victims have been painted either harridan or whore to argue provocation.

We live in a society where people will queue to shake the hand of a man convicted of sexual assault in a staggering expression of support, a society where the Slutwalk movement is just as relevant as the Reclaim the Night marches have been for years. Isn’t it about time we stopped treating our daughters as if they were treacherous Eve, about time we taught our sons that women are to be respected and that taking advantage, crossing that line, is a crime against all of us. A crime that should result in shunning, condemnation and punishment harsh enough to hurt.

There are too many of these stories and yet there are not enough. The majority of cases that come before the upper criminal courts are committed by men against women or children. Most of these are never covered. The cases I’ve mentioned in this piece are just the tip of the iceberg. Isn’t it time for a fundamental change? A change in the law and a change in attitude. We need to grow up.

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.

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.

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.

Revisiting a Familiar Case

26th February 2010 / Abigail / 7 Comments

Finn Colclough will get out of jail two years sooner than he was expecting after today. He had appealed his ten year sentence for the manslaughter of Sean Nolan just before Christmas. Today he learned he had been successful. The three judge Court of Criminal Appeal ruled that Judge Paul Carney should have taken into the account that Finn would have willingly pleaded guilty to manslaughter when deciding on sentence.

Out of all the trials I’ve covered in my time down in the Criminal Courts the Colclough trial was one of the most tragic. Finn had been celebrating the end of the school term, out with his family for a 21st birthday part. He was only 17.

Sean Nolan was celebrating the end of secondary school. out with friends. He was searching for a girl he knew Sara, in the Waterloo Road area of Dublin 4 when he bumped into Finn and 2 friends. It was around 4 in the morning.

There was a misunderstanding, Sean and his friends were looking for a corkscrew to open the bottle of wine they had bought on the way. Finn and his friends got scared when the older boys shouted from the road in their quest.

Finn came running out with 2 knives. Sean stepped forward. They struggled. Sean was fatally stabbed. It was a case of almost breathtaking tragedy. One that had no sense to it, no logic.

I’ve written at length on the case here in the past so I’m not going to revisit now. I will say that in light of other manslaughter sentences Finn Colclough’s was on the long side. The fact that ten years doesn’t seem long for taking someone’s like doesn’t come into it, these are the sentences the court hands down for manslaughter. I’m not surprised that the CCA decided as they did and I shall be interested to read their ruling at a later date.

Speaking outside the new courthouse today Sean’s mother Charlotte Nolan said that she was happy the legal process was over and that the ten year sentence still stood.

She also called for urgent changes in legislation to tackle what she referred to as the “epidemic of knife crime”. She’s not alone in this. I’ve heard several judges including Paul Carney speak out about the prevalence of knife crime primarily among the young men in our society. It’s a subject that we will hear of again, probably the next time a young life is tragically lost after a night of drinking. You may hear about, you may not. Unfortunately there are so many cases like that going through the courts and not all of them have the handy hook of an exclusive address.

Now that the Dust has Settled

11th February 2010 / Abigail / 0 Comments

It’s been a hectic start to the year. Since January 11th almost every waking hour has been taken up with the Eamonn Lillis trial. I’ve covered it for the Sunday Independent and for Hot Press. I’ve written about it here and on Twitter. I’m not the only one. Pretty much every journalist in Dublin who covers the courts has been totally obsessed with the lives of Eamonn Lillis, Celine Cawley and Jean Treacy.

It happens every time there’s a big trial, the kind where newsdesks devote daily double page spreads to each days evidence, the kind we’ve been having once or twice a year since the flood gates opened with the criminal extravaganza that was the Joe O’Reilly trial. I’m not getting into whether or not the media pay too much attention to big trials, after all it’s what I do for a living, but covering one like the Lillis trial is an all consuming experience.

I’ve covered courts on both sides of big trials. When the O’Reilly trial was going on I had the job of covering every other murder that took place in that three week period. It was a busy time, although you wouldn’t have known it from your daily paper. Every day of the O’Reilly trial there was at least one other murder trial going on. I covered all of them (luckily none of them actually ran at the same time as each other although there were one or two overlaps).

It’s a little surreal covering a trial when there’s something like the Joe Show going on next door. There were days when even the accused seemed more interest ted in what was going on on the other side of the Round Hall than the evidence that was coming up in his own trial. Maybe it’s because of the circumstances, or because I was still fairly new to the job, but I can still remember the names of the accused in each of those trials. It might also have been because all three trials were acquittals, which don’t happen that often.

There was the taxi driver’s son acquitted of murder after he had been the subject of an unprovoked attack while he was walking his dogs. Then there was the two traveller guys accused of attempting to murder another fella. When they were acquitted the chief prosecution witness was one of those waiting outside the courts who lifted the freed men cheering onto their shoulders. During that trial, the defence insisted the jury see a wall that featured heavily in the prosecution’s case so we all went on a junket to the estate. The locals all came out of their houses to see what on earth was going on and Mr Justice Paul Carney posed for photographs.

Then there was the trial where the chief prosecution witness seemed to know a lot more than he let on. Something the jury obviously picked up on as they acquitted the accused despite two days of particularly damning testimony from the witness.

I’ve been thinking about those weeks on and off this week because I suddenly realise that there were a lot of things I was supposed to be keeping an eye on that I’ve written about on this blog. Ann Burke for example, the 56-year-old mother from Laois, who was convicted of the manslaughter of her abusive husband before Christmas. I wrote about the trial here so I won’t recap but she was supposed to be sentenced during the Lillis trial. I noticed several people have arrived at this blog looking for information on the sentencing so I checked it out. As it turned out I didn’t miss it with all the Lillis circus. Her sentencing has been deferred until March 22nd so I’ll keep an eye out.

Another one that’s pending is the result of Finn Colclough’s appeal. Finn was convicted back in December 2008 of the manslaughter of Sean Nolan. The trial got a fair bit of attention, partly because it happened on Waterloo Road in posh Dublin 4 and partly because Finn’s mother Alix Gardener was a TV chef. I’ve written about it at length here as well so I won’t recap more than that. Anyway, the ruling was deferred before Christmas and as yet there’s been no word. Again I’ll write a post when there’s a judgement. It looks like it might be an interesting one.

Now that the dust has settled there’s time to catch up on all the stories I missed. I don’t think Lillis has gone away but at least there are no more crowds and things are getting more back to normal.

And We’re Back to The Subject of Sentences

7th February 2010 / Abigail / 0 Comments

No this isn’t a writing related post, I’m not talking those kind of sentences. I’m talking about the sentences handed down by Irish courts, the Central Criminal Court in particular and Eamonn Lillis’s sentence to be specific.

Since he was given seven years on Friday the papers and the airwaves have been full of condemnation of judge Barry White’s sentence. I agree that seven years, or six years and eleven months to be precise, isn’t a lot for the taking of a human life but it’s not an unusual length for a manslaughter sentence in the Irish courts.

I’ve written here before about the need for more severe minimum sentences for crimes like manslaughter and rape but it’s an ongoing problem.

When I was asked on Twitter what I thought the sentence was going to be on Friday morning I said that I thought it would be in the area of seven to ten years. I was going by what I’d seen in previous trials and knowledge of the judge involved. As it turned out Mr Justice White said that he considered the correct sentence to be ten years, but reduced it on considering mitigating factors – chief of which appeared to be the level of media scrutiny Lillis can expect when he gets out of jail.

I’m not going near the whole media as mitigation thing. We do our job and Eamonn Lillis, or for that matter Jean Treacy, would not have been of interest if he hadn’t killed his wife. That’s the way it works. Newspapers wouldn’t waste the ink if stories like this didn’t sell papers. While I’ll admit that some of my colleagues might fan the flames of interest quite strenuously, they, or for that matter myself, would not be concerned with this kind of story if it didn’t pay the bills. As a species we are fascinated with our own kind. Crime allows us greater access to the workings of people’s lives and minds than we get in the normal paths of our daily lives. But I’m going off the point, this post is about sentences.

A lot of people are saying that Eamonn Lillis got what is perceived as a light sentence because he is rich. His route through life might have been eased by money but when it comes to the courts it generally makes very little difference. I’ve seen people at both ends of the social spectrum have the book thrown at them, for different reasons and I’ve seen sympathy shown just as diversely.

Finn Colclough, from Waterloo Road in Dublin, was given ten years for the manslaughter of Sean Nolan but it’s not just those with posh addresses. In April 2008 21-year-old Limerick student Jody Buston was sentenced to a mere 6 years for stabbing a pensioner in the heart after wandering into his house and mistaking the old man for a ghost. The year before three Limerick teenagers who had intentionally run over apprentice electrician Darren Coughlan after mistaking him for someone else were given a maximum of seven years. Finally in November last year the first person to be convicted in the new criminal courts complex at Parkgate Street was sentenced to ten years for stabbing a man outside a Galway pub.

If sentences are too short in the Irish court system it’s generally not due to some partiality of judges or an old boys club of partiality in terms of the accused, it’s because that’s the way the law is. It’s even worse when it comes to rapes. I’ve written here before about the Court of Criminal Appeal overturning the life sentence handed down to Philip Sullivan who raped two small boys. It’s a problem throughout the system and one, certainly that needs to be changed.

But shouting about it because of perceived social inequality is missing the point and allowing for the wider issue to be ignored. Eamonn Lillis didn’t get seven years because he’s a millionaire, he got it because that was what he was always going to get if convicted of manslaughter. The fault is with the system on this one, not the individual judges.

Once Again the Irish Courts Ignore the Press

25th November 2009 / Abigail

Photo by Michael Stamp

Today the Central Criminal Court sat for the first time in the new Criminal Courts of Justice Complex at Parkgate Street in Dublin. The €140 million complex is the largest major court development since the Four Courts were built in the 18th Century.

It’s a massive complex – 23,000 square feet which house 22 courts and 450 rooms. In January, all criminal matters will be dealt with there – the Central, Circuit, District and Special criminal courts will all move in, leaving the Four Courts the preserve of civil matters.

It’s an impressive building – large, airy and imposing. There are state of the art jury facilities, cells and victim support quarters. Today in Court 6 photographers and cameramen were allowed in to mark the historic moment when Mr Justice Paul Carney took his seat to preside over the first list.

There were a couple of initial teething problems. As the first trial got underway the witnesses had to affirm as they were sworn in because no one had thought to bring a Bible into the new complex. There were delays as prisoners were brought up from the cells but matters by and large continued without a major hitch.

If you are a journalist however the new courts pose quite significant problems. Once again the concept of designated seating for the media has been ignored and a single bench provided, if we’re lucky enough to get to it before someone else is sitting there.

The new media rooms, which we had been promised such great things about, turned out to be two bunkers on the ground floor, next to the toilets. Low ceilinged, with no windows whatsoever the new rooms are little more than boxes.

While other offices are equipped with sinks and ample space for kettles and other necessities of office life, the press rooms have no such facilities. The one provided for print, radio and photographers has space for a mere ten people (little use in a high profile trial which can easily attract 40 or 50 journalists on any one day). There are only plug sockets on one side of the room. Even if your battery holds up there’s no reception for phones or 3G modems. One of the more venerable reporters on the scene commented that facilities had been better for the press in the 1950s.

The TV journalists fare little better. RTE and TV3 will have to share a room only slightly larger than the box shared by print reporters, radio and photographers. Hardly ideal when a deadline is approaching for everyone.

There was a great feeling of anger and disappointment from the press benches today. We had been promised the sun, moon and stars with the new facilities but now found ourselves longing for the old media room in the Four Courts. We might get locked out once the office staff go home at 4.30 (a major problem if you’re waiting for a jury until 7 or so) but they actually have windows and over the years people have brought in a kettle, microwave etc. It’s quite civilised. It’s even bigger than the space we’ve been given now.

The most depressing thing about the paltry facilities is that they don’t really come as a surprise. the Irish Courts Service tends to tolerate journalists at best. We’re seen as an inconvenience, a drain on resources. The idea that we are representatives of the public and our presence ensures that justice is carried out in public – as laid down in Article 34.1 of the Irish Constitution – is simply not considered. In the case of certain trials, like rape, where the general public are banned from the court, we’re the only public representatives allowed in.

In Irish courts the press frequently have to argue their right to attend and the grudging facilities provided in the new courts are symptomatic. We don’t have automatic rights to see certain court documents but rely instead on the kindness of court staff and barristers.

While there are court staff who will bend over backwards to help the press they are in the minority. Sadly the attitude that we are little more than vermin seems to be spreading and matters will only get worse as familiar faces retire and are replaced with new blood.

Whatever you might think of the individual media outlets in Ireland it’s a sad state of affairs when a country’s media are disregarded to this extent. Court stories have always made up a large part of the news since the earliest days of the media and it’s right and proper that they do. We don’t simply follow trials to pick over the lurid details of the latest high profile murders. Court stories also cover miscarriages of justice, shine a light on injustices, show the failings of the state – and the rest.

In a country where the Taoiseach will say publically that Freedom of Information is a waste of resources and so many of those in power have shown utter disregard for the good of the electorate there needs to be greater transparency not less. The press weren’t consulted on what facilities were needed in the new courts and the attitude is that we should make do with crumbs. Ultimately though this isn’t to do with the lack of a view from the press room, it’s to do with something far more fundamental. I’m writing this from a personal perspective but this stuff is important and these attitudes shouldn’t be allowed to continue.

The Books

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