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Although we rightly expect much of our nation's judges, we cannot expect them to be perfect. Being human they will occasionally make mistakes, but the important thing is that our criminal justice system is constructed so as to correct these errors in a timely fashion.
If judges never made mistakes then we would not need appeal courts. Appeal courts have a better chance of getting things right, not because the judges on them are any cleverer than the trial judges but because there are more of them.
Three judges sit on the Court of Criminal Appeal, while the Supreme Court can sit in panels of three, five or seven members. The more judges you have looking at a problem, the more likely they are to get the answer right. The other advantage that appeal judges have is that they can look at a case in the cold light of day, removed from the emotions and time constraints that surrounded the trial.
In this week's case involving 72-year-old Patrick O'Brien, who was freed on bail after he was convicted of raping his daughter over a 10-year period, Mr Justice Paul Carney did not wait for matters to get as far as the appeal court, but intervened himself to put things right.
This is not unprecedented. From time to time, when a judge realises they have made a mistake, they will call the parties back into court and will see if there is a way that they can correct it themselves. Sometimes it may be too late to correct an error, such as when a final order has been made and drawn up. However mistakes relating to procedural matters such as bail can usually be corrected in an informal manner.
Historically, matters were even more flexible. When judges used to travel around Ireland for two-week sittings known as local assizes they were allowed change their mind about a sentence so long as they did so before the sitting had ended and they had left town. Thus, if a judge had second thoughts about a sentence they imposed on a Monday they could impose a different sentence on the Friday. Nowadays, such a system seems arcane and people expect to walk away from court knowing precisely what the sentence is, subject to any appeal.
The fact that Mr Justice Carney apologised to Fiona Doyle highlights a recent trend in our justice system to give more recognition to the victims of crime. Judges are now much more aware of the impact that the sentencing hearing can have on the victim and their family. The introduction of victim impact statements ensures that the experience of the victim is central to the sentencing process.
However, even with these improvements, there will always be a tension because of the fact that prosecutions are not brought by the victim but are brought by the Director of Public Prosecutions on behalf of the public as a whole. The victim is a witness in the case, but unlike in a civil case they have not brought the case and so cannot control it. This will always be an understandable source of frustration for victims, but it is a necessary feature of a fair and objective justice system.
Judge Carney is not the only judge to apologise in recent times. There have been examples of district judges who have made controversial remarks when sentencing non-nationals that have been highlighted and who have had to apologise afterwards.
However, it is important to be aware of when a judicial apology is appropriate and is not appropriate. A judge should not apologise simply because a sentence is unpopular or controversial. If people think that the sentence is wrong, then their remedy is to get it reviewed by the appeal courts. It would undermine the independence of the judiciary if the media could demand or provoke apologies from judges in circumstances where the judge has done nothing more than impose the sentence that they think is appropriate.
Unlike politicians, it is not the job of judges to try to be popular. Thus, whilst Mr Justice Carney's apology to Fiona Doyle was absolutely correct, there are good reasons why the public should not expect this to mark the start of regular judicial apologies.
James McDermott is a lecturer at the School of Law in UCD and a practising barrister
Irish Independent
