Saturday 20 January 2018

Judicial error reignites debate about much-needed reform of criminal law

IT's been a rough ride, but it's worth it. The parting words of abuse victim Fiona Doyle as she watched her rapist father led away to jail could equally be applied to Mr Justice Paul Carney.

Earlier this week, Mr Justice Carney, who has been engaged in a long-running war of words with the Court of Criminal Appeal (CCA), released Patrick O'Brien (72) on bail.

Mr Justice Carney released the abuser on bail after he mistakenly certified O'Brien's case for appeal despite a change in the law two years ago preventing the courts from doing so.

It was a genuine, if major procedural mistake (such appeals are now automatic) and if it could happen to a bishop, it could happen to a judge, too.

Were it not for Mr Justice Carney's error, Fiona Doyle's story may have been confined to a few column inches, yet another chapter in Ireland's sorry struggle to deal with sexual abuse. Instead, it has highlighted an ever-increasing public intolerance of sex abuse.

And in committing a significant error, Mr Justice Carney has revived a much-needed debate about much-needed reform of our criminal justice system as it relates to sex offenders.

The Doyle case has highlighted the need for consideration of detailed sentencing guidelines.

And Mr Justice Carney's unusual, personal appeal for help – he said he mistakenly certified O'Brien's case for appeal because he wanted the support of his "experienced" colleagues on the Court of Criminal Appeal – is indicative of the difficulties faced by even the most experienced judges.

Mr Justice Carney, who issued a comprehensive apology to Ms Doyle, recently served on a three-judge court in the so-called right-to-die case and appears to have enjoyed the comfort of collaborating with colleagues in challenging cases.

His deep contrition and new-found respect for the CCA suggests that peace has been restored between these two important institutions.

The criminal justice system is best served by a discretion that allows judges to evaluate sentences in terms of the offence, the offender and the impact on victims and society at large.

As the Fiona Doyle case shows, mistakes can be corrected. The major challenge lies in improving our rates of detection of sex crimes and keeping those cases in the system.

The greatest crime is the fact that so many abusers evade justice, every day, due to the low detection of offences and prosecution of perpetrators. That is the greatest injustice of all.

Irish Independent

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