Let’s not rush to judgement on Carney
One concerned the lack of natural justice in such a criminal walking free after his conviction in the Central Criminal Court. The other opinion proffered in the media came largely from lawyers and legal academics, who attempted to frame the case within the strictures of the law.
The former cast the presiding judge, Paul Carney, as somebody who handed down his sentence with scant regard for O’Brien’s victim, his daughter Fiona Doyle. The latter attempted to demonstrate how the judge was merely discharging his constitutional function. There is, however, another lens through which the sorry tale can be viewed.
O’Brien was sentenced to 12 years for the rape and abuse of his daughter that persisted through her childhood, from the time of her First Communion. She was subjected to the most vile upbringing imaginable, and the psychological scars have blighted her adult life.
After hearing sentencing evidence on Monday, Judge Carney imposed the 12-year term. suspended nine years because of mitigating factors — primarily O’Brien’s health and age — and then set him free on bail pending a possible appeal. He framed his sentence, including the bail element, in the context of previous rulings of the appeal court.
By Thursday, following a tsunami of outrage, and an application from the DPP, the judge revoked bail, and expressed “regret” to Fiona Doyle for the distress caused. However, the whole affair does raise issues about Carney. His comments in delivering sentence on Monday appeared to be concerned mainly with how he would be perceived in the media and beyond.
“If I impose a serious custodial sentence and suspend it, it will go out in sound bites that, in one of the most serious cases of serial rape on a daughter, the man walked.
“That is all the community will be told. On the other side, if I impose a heavy sentence, unsuspended, I will be branded as a trial judge who substituted one injustice for another. I am trying to strike a balance.”
Should the judge’s primary focus in dealing with this most vile of crimes have been how he would be perceived?
Carney is acutely conscious of his media image. It would be unfair to attribute that entirely to a matter of ego. He has, over the course of the last 20 years, got it in the neck from the media whenever he handed down sentences that were perceived to be unfair, and, in some cases, outrageous. Often the coverage did him a severe injustice.
He has been cast in these instances as a judge who has little sympathy for victims. That view is entirely at odds with his attitude towards victims throughout his judicial career. Victims’ groups, and particularly those dealing with sex crimes, have often acknowledged his compassion. It was notable in the last week that none of the voices from the rape crisis network were critical of him personally, but the system. He has been to the fore in attempting to give victims a voice in the criminal justice system.
One obvious example of the unfair shake he can get in the media was furore in the aftermath of the four-year sentence he gave Wayne O’Donoghue for the manslaughter of Robert Houlihan in Jan 2006.
O’Donoghue killed the 11-year-old boy and hid the body. He went on trial for murder but was convicted of manslaughter. Carney was heavily criticised after the sentencing hearing, following some explosive victim impact evidence from Robert’s mother, Majella. Any proper analysis of the case would have vindicated his sentence, which was subsequently confirmed by the Court of Criminal Appeal.
Apart from his treatment in the media, his other great bugbear has been the appeal court. Repeatedly, he has expressed his unhappiness when the appeal court adjusted his sentences. He appears to take this personally. In last week’s case, he referenced a previous one in which, he said, the DPP, “went behind my back”. At times, such as in the O’Brien case, he appears to be intent on second-guessing what the court might do, rather than merely interpreting its previous rulings.
His ire in this regard is understandable on one level. He has been presiding at trials of the most serious crimes for the last 20 years, and a transient court of three judges, who do not routinely hear evidence of this nature, comes along and adjusts his sentences.
And so it was that, in last week’s case, he appeared to cast himself as a figure caught between a flighty media and a transient appeal court that must be second-guessed. It’s hardly a scenario that could engender confidence in the administration of justice in the highest criminal court in the land. One thing that is rarely acknowledged about Judge Paul Carney is the service he has given the State. For 20 years, he has been the main judge in a court that deals exclusively with murder and the most serious of sexual crimes, hearing nearly three quarters of all cases before the court.
His tenure has coincided with an opening up of society to the hidden depravity of child sex abuse that went on for decades behind closed doors. Nobody in the legal system, and few beyond it, have heard as much detail of how depraved people act, and the effect that those crimes have on victims. Through all that, he has been obliged to listen and give rulings with a detachment that enables him to strike a balance between the rights of offenders and victims.
He told a conference in 2005 how he manages to compartmentalise the work from his life:
“By 4.10 each afternoon I have completely forgotten what has happened in my court that day and even who the counsel were. This is a necessary defence mechanism to have in a court where jurisdiction is largely murder and rape, and if I did not have this facility my mind would constantly be cluttered with images of semen and body parts.”
Still, does a time come when the role he fulfils can be too much for one man, even a judge? Last November, Carney was one of the three judges to hear the right-to-die case brought by Marie Fleming. It was a rare case away from all the serious crime that fills his days. He is undoubtedly a man who has plenty to contribute to the bench of the High Court.
Canvass any legal opinion, or that of court reporters, and you will get the overwhelming response that he has been an excellent judge. Controversies do arise, but in a court dealing with such serious crimes, and over a tenure as long as his, that is inevitable.
Last week’s judicial palaver suggested that Carney’s own interests, and confidence in the criminal justice system, might be better served if his talents were deployed elsewhere.
