Friday 21 July 2017

Video: Judge must be mindful of appeals procedure

ARAPIST who abused his daughter for 10 years walks free. To understand the reason why Judge Mr Justice Paul Carney allowed Patrick O'Brien to walk free (for now), you must understand his testy relationship with the Court of Criminal Appeal (CCA).

Judge Carney, who hears more than 70pc of all rape and murder cases tried in the State, has been engaged in a series of bruising encounters from the bench with the ad-hoc, three-judge CCA which does not have a permanent set of judges.

To some, the lack of permanence has led to a lack of coherence surrounding sentencing.

Judge Carney has also been at odds with the office of the DPP – who indicates the gravity of a given offence, but does not suggest an appropriate sentence.

That has angered Judge Carney who has found many of his sentences appealed – only to find them reduced or increased by CCA judges.

Judge Carney described O'Brien's crimes as one of the most serious cases of serial rape of a daughter. Before doing so, he asked the DPP whether the office wanted a prison sentence, and if that office would stand over a custodial term.

Judge Carney summed up his dilemma as thus: If he gave a serious custodial sentence and suspended it, all the public will perceive is that a serious offender "walked". But if he imposed a heavy sentence, he will be accused of substituting one injustice for another.

This latter comment appears to be a reference to the words of Supreme Court judge Mr Justice Adrian Hardiman. While a CCA judge in another case, he said that the court must "be alert not to replace one injustice with another".

Judge Carney also made reference to a 2008 appeal involving a child abuser – where the CCA said that Judge Carney had given insufficient weight to the illnesses and declining health of the "very old man" in that case before suspending the entirety of the sentence.

In granting O'Brien bail, was Judge Carney – mindful, no doubt, of the chronic waiting lists at the CCA – merely sticking to the CCA's precedent?

Irish Independent

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