Saturday 17 March 2018

Murder-trial system doesn't work

Lifting the mandatory life sentence would greatly improve the prosecution process


Celine Cawley's tragic death and the unsuccessful prosecution of her husband Eamon Lillis for murder illustrates the low level of success in prosecuting this offence. The release by the Central Statistics Office (CSO) of their report into the detection and prosecution of crime by the gardai last week confirms this.

The first problem is that of detection -- only a little over half of all murders resulted in some action being taken within a year. For example, there were 51 murders recorded in Ireland in 2003 of which only 31 led to what is known as "relevant proceedings" in court.

The second problem is the difficulty in obtaining an actual conviction in the cases prosecuted. Even where there is successful detection and efficient evidence gathering and storage, Irish juries are then very reluctant to convict on murder.

The conviction rate in murder trials was 48 per cent in 2004, but this begun to fall as gangland murders increased in 2005 and 2006 when the conviction rate dropped to 21 per cent.

For certain categories of murder -- such as gangland shootings -- the figure is far lower. Recent government replies to questions from opposition parties indicate that there were no convictions for gun murders in 2007, 2008 and 2009 .

The majority of unlawful killing cases in Irish courts start out as murder trials but end up with manslaughter verdicts.

The Lillis case illustrates this point. Like most Irish murder trials this case was not contested on the facts, rather it was fought for the purpose of convincing the jury to deliver a verdict of manslaughter.

Guilty pleas to murder are rare due to the fact that a fight will usually result in a manslaughter verdict, which almost guarantees a lesser sentence than the mandatory life sentence for murder.

The minimum sentence for murder is life imprisonment; the likely term served is nine to 12 years.

All other sentencing for a homicide conviction is at the discretion of the judge. The maximum sentence for manslaughter is life imprisonment.

However, 75 per cent of manslaughter convictions in the last 10 years have received a sentence of from two to less than 10 years, with the majority of sentences being closer to five years.

Juries are afraid of imposing a murder verdict due to two main factors: the imposition of a higher level of moral blameworthiness to a certain extent, and to a far greater extent the severity of the mandatory sentence.

Irish jurors can avoid imposing what they see as an absolute fixed life term and put the sentencing back in the judge's hands with a manslaughter verdict.

This has caused great hardship and pain to the families and friends of the victims in two ways. Firstly, it leads to the ordeal of a public court case where the victim's life with all their flaws and failings are put under the spotlight.

And, secondly, it results in the feeling that they were cheated out of a proper verdict of murder.

The family were then faced with the killer of Rachel being found guilty of the lesser offence and getting a lighter sentence.

The rather sad case of Robert Holohan, who was killed by his next-door neighbour Wayne O'Donoghue, illustrates the other side of the coin. This was a typical Irish murder trial in so far as there was a charge of murder laid against O'Donoghue, thus forcing his defence team to fight every step of the way in what turned to be a brutal ordeal for both families.

Had he simply been charged with manslaughter he may have pleaded guilty and avoided all the extra anguish for both families.

The detection of murder rests in the hands of the gardai but the prosecution of murder could be greatly changed and improved by the removal of this fixed mandatory life sentence hanging over the proceedings.

Judge Paul Carney has called for a unified offence of homicide to be introduced with discretionary sentences imposed on the basis of the circumstances. He has noted that he has never seen the family of a victim satisfied with a manslaughter verdict in a murder trial.

The Law Reform Commission has rejected this notion but has recommended the abolition of the mandatory life sentence.

Studies covering 1950 to 2009 by various bodies, like the Department of Justice, the National Crime Council, the DPP, the gardai and the CSO, reveal that the conviction rates for murder over this period have fluctuated from 57 per cent to 14 per cent.

Sunday Independent

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