Saturday 1 October 2016

'Traditionalist with a gruff exterior and an innate sense of decency'

Michael O'Higgins

Published 25/04/2015 | 02:30

Judge Paul Carney before his final sitting as he retires from the High Court. Photo: Damien Eagers
Judge Paul Carney before his final sitting as he retires from the High Court. Photo: Damien Eagers

The retirement of Paul Carney marks the end of a long and illustrious career as a barrister and judge, and the departure of one of the most combative and enigmatic characters from the bench.

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There had been long delays in trials before he assumed the de facto role of president of the Central Criminal Court. He put order and shape on it by dint of hard work and clamour for extra judges to clear backlogs of cases. He presided over some of the biggest criminal trials over the last two decades.

As the senior judge of the Court (which deals with rape and murder cases) he presided over sentence hearings involving graphic sexual depravity. He developed a great empathy for the victims of crime. It was his practice to wipe from his mind the evidence he had heard in court at 4pm as a coping mechanism.

Previously the Court had only sat in Dublin. He made a point of trying cases in the locality where the offences were committed. He always insisted on staying in the best hostelries. When he decamped from Hayfield Manor in Cork to the period comfort of Castelmartyr the staff lined up outside the hotel to greet him in a scene reminiscent of Downton Abbey. It was testament to the power of his personality that no official had the temerity to downsize these arrangements.

A man of few words - he once as a barrister gave a one line closing address on behalf of an accused: "No Dublin jury would convict on this evidence" (and they didn't) - he knew the value of a soundbite. He had a quixotic relationship with the media. On occasion he was pilloried for imposing a sentence that was perceived as too light. By others, he was lionised for handing down life sentences to persons who had pleaded guilty to heinous rapes. He enjoyed all of this attention.

He had a fractious relationship with the Court of Criminal Appeal. He resented the fact that many of the judges who sat on the Court and had little or no experience of criminal trials, and referred in withering terms to one of his decisions having been overturned by a "patents lawyer."

Matters came to a head with an address he gave as Adjunct Professor of Law at University College Cork, in which he commented on the number of persons involved in knife attacks that were convicted of manslaughter instead of murder, and then went onto observe that when he and his colleagues tried to impose a sentence commensurate with the crime the sentence was invariably reduced on appeal.

The speech, which received saturation coverage in the media, coincided with a trial presided over by him in which two brothers charged with murder had knifed the deceased. They were duly convicted and appealed the conviction on the grounds that the judge's remarks had prejudiced their right to a fair trial. The Court agreed and quashed the conviction and directed a re-trial. The men were convicted again the second time around.

He was very much a traditionalist and was appalled by changes that made wearing of wigs in court optional and required judges to be addressed as "judge" rather than "my lord". Guards giving evidence who called him judge were somewhat bemused to be told that judge was a character in 'Wanderly Wagon' and that he would be preferred not to be called anything.

He was quite obsessive about the wearing of wigs. He declined to mentor a recent appointment to the bench when she refused to wear a wig during the induction period. Some counsel wore wigs to placate him. He would often ask a barrister to introduce his devil to the court and would then commend him or her for keeping up the fine traditions of the profession. He could be less than complimentary to those who had abandoned the practice. Such comments were the subject of a mild rebuke in a judgment handed down by the Court of Criminal Appeal. Predictably, he was apoplectic.

He was not a man to spend time reading lengthy judgments parsing and analysing the finer points of law, but he was a first-class lawyer, had good instincts, and very rarely got it wrong. He disliked grandstanding and would quickly puncture ego with a few well-chosen words. A number of prosecutions ran aground after the Supreme Court struck down a section of the Offences Against the State Act, which permitted Garda Superintendents to issue search warrants. Evidence seized during searches or confessions made afterwards were inadmissible.

Paul Carney bucked the trend by admitting into evidence confessions of an accused in a gangland double murder observing wryly that the State had to be allowed protect itself from professional assassins. The recent decision in the Supreme Court, which has limited the circumstances under which Courts can exclude evidence means that his decision in that case may now be proved to have been correct.

Off the bench he could be painfully shy and preferred to be on the margins. He was not a golf club man nor did he hang out with the 'in crowd'. He was at home being a thorn in the side of vested interests. His best asset as a judge was his independence and I think the fact that he kept his own counsel strengthened this quality.

Behind a gruff and curmudgeonly exterior lay a softness and kindness and a strong innate sense of decency. He greatly enjoyed bringing on young barristers and encouraging talent. He understood the pressures of daily practice and, within reason, was accommodating to the needs of barristers diaries. For all of this he was admired and greatly liked by the Bar. He will be sorely missed by the practitioners and other professionals involved in the courts.

Michael O'Higgins is a Senior Counsel

Irish Independent

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