Thursday 23 October 2014

Should the financial means of sex attacker have any place in balancing scales of justice?

Published 11/07/2014 | 02:30

Anthony Lyons
Anthony Lyons

WHAT price justice? That is the thorny question the Court of Criminal Appeal may have to consider in light of new revelations that millionaire sex attacker Anthony Lyons has reached a civil settlement of almost €200,000 with his victim.

The three-judge court, which made details of the settlement public yesterday, says the fact of the compensation is "a relevant matter".

The court, led by former Chief Justice John Murray, said the compensation will be taken into account when considering whether a six-month jail term handed down to the aviation broker is unduly lenient as the Director of Public Prosecutions contends.

But should the scales of justice be tipped in any way by the financial means of a violent sex attacker?

Or does the public interest require that judges in criminal courts are blind to money matters in cases of rape and sexual assault?

These complex questions are easier to pose than to answer.

There was outrage two years ago when Lyons (53) had five-and-a-half years of a six-year jail term suspended.

The 2010 attack on the young woman, walking home after a night out with her family, was unequivocally base and vicious.

She was rugby tackled to the ground on a dark stretch of road, groped and sexually assaulted by Lyons who tried to stop her calling out by putting his hand over her mouth and around her neck.

Her immediate ordeal ended when a passer-by came to her aid.

But it was compounded when Lyons, who initially denied the offence – and later blamed his "irresistible urge" on cholesterol medication – had the vast bulk of his custodial term suspended following a trial at Dublin's Circuit Criminal Court.

As part of his sentence, Lyons was ordered by trial judge Desmond Hogan, under a 21-year-old law, to pay €75,000.

The compensation order raised howls of public protest and, unfairly or not, fuelled perceptions of cash-for-leniency deals within the criminal justice system for those who can afford to pay their way out of jail.

Section 6 of the 1993 Criminal Justice Act allows a court, instead of – or in addition to any other available measures – to make an order dealing with an offender as it sees fit – to make an order requiring the offender to pay compensation in respect of any personal injury or loss resulting from that offence.

Like most laws with unintended consequences, the "victim oriented" legislation stemmed from good intentions in the wake of a huge public outcry, in this case the Kilkenny Incest tragedies and the Lavinia Kerwick rape case.

The 1993 law extended, to victims of crime, a 1991 law, which provides that compensation can be granted by the courts in criminal cases to victims who have suffered damage to their property. The notion of sex attackers paying their victims in mitigation of a harsher sentence does not sit well in our adversarial criminal culture.

Sex abuse victims usually wait until criminal proceedings have ended in their entirety before suing their attacker for compensation in the civil courts.

In this way, Ireland has traditionally drawn a line between the civil and criminal courts when it comes to sexual crimes.

In contrast, criminal courts in many European countries award compensation as a matter of course as part of the trial process – with the State paying if the offender can not.

It is not only the public who are uncomfortable with the application of compensation orders.

Last year, a senior judge warned that the practice of sex offenders offering money to their victims to mitigate their sentences was yielding inconsistent results in sexual assault cases.

High Court Judge Mr Justice Peter Charleton, now elevated to the Supreme Court, said he was concerned about the "money" factor following an analysis by the Judicial Researchers Office (JRO) of sentences handed down for sexual assaults. "If money can be raised by the accused, the legislation says that it can be a mitigating factor," he said.

"But if it cannot be raised because the accused and his family are poor, where reasonably does justice stand?"

When it challenged the leniency of Lyons' sentence, the DPP said that two factors – compensation and the issue of remorse – were given inappropriate consideration by the trial judge.

But Mr Lyons' lawyers argued that his attack was "a unique piece of criminal activity" by a man with no previous convictions who had previously led a "completely blameless" life involving charity work.

Senior Counsel Patrick Gageby argued that the sentence was not disposed of "just by compensation" but also a very substantial jail term.

Whatever way the court rules, it will have important consequences for the public perception of how courts handle sexual crimes.

Dearbhail McDonald

Irish Independent

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