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.
