Sentencing row - McDowell touched a raw nerve

RELATIONS between the judicial and legislative arms of State have reached a low ebb following yesterday’s broadside from the Court of Criminal Appeal in response to Justice Minister Michael McDowell’s recent allegation that judges were soft on crime.

While Mr Justice Adrian Hardiman stopped short of naming the minister, he made it clear the judges would pay no intention whatever to “strident and repeated” public comments from more than one source leading to “wide and excited” coverage in the media.

Mr Justice Hardiman made his comments during a case of a man appealing against the severity of his seven-year sentence for possession of cocaine, an appeal that was refused. Basically, he told the Government to back off, emphasising the right of judges to exercise their discretion in applying sentences.

This issue goes to the heart of debate on the vexed question of the mandatory minimum 10-year sentence for criminals found guilty of serious drug and gun offences.

With some justification, there is a public perception that sentences handed down by certain judges are too lenient. Like it or not, some members of the judiciary are regarded as living in ivory towers, divorced from the realities of society where violent crime lords get rich by selling drugs.

Echoing these concerns, the Tánaiste has questioned the high rates of bail being granted to people charged with serious offences, usually in the face of strong opposition from gardaí.

By no means is the drugs phenomenon confined to working class areas of Dublin, Limerick, Cork or other cities and towns. Thanks to Celtic Tiger largesse, there is widespread abuse of cocaine and so-called “leisure” drugs in leafy suburbs up and down the country.

More significantly, the debate touches directly on the independence of the judiciary and the separation of powers, central planks of our democracy designed to protect the judicial system from political interference.

As a constitutional lawyer, Mr McDowell knows he is on delicate ground. But in keeping with his penchant for shooting from the hip, he has challenged judges to change their attitude on mandatory sentencing.

Characteristically, the Tánaiste rejects the claim that by seeking to ensure the legislation on bail and serious drug offences is implemented, he risks crossing the constitutional boundary between the judiciary and the legislature.

Indeed, he has reminded judges that in 1996 the people of Ireland went to the polls and voted for tighter controls on bail for those accused of serious crimes.

Arguably, there is support for the minister’s stance,

especially given the high number of serious drug offences where judges have failed to impose the mandatory 10-year sentence on defendants who pleaded specific and exceptional circumstances. But there is also concern that he has over-stepped the mark.

The robust nature of Mr Justice Hardiman’s response shows the minister has touched a raw nerve. Striking back, the eminent judge describes the recent comments as openly critical of the judicial interpretation of the exceptional circumstances in which a sentence of less than 10 years can be imposed.

In a transparent side-swipe at the Tánaiste, he stresses that the duty of judges was to decide individual cases impartially in accordance with the Constitution and the laws, and without regard to expressions of opinion from any source other than the DPP and the person on whom the sentence was imposed.

Clearly, the new mandatory laws represent a drastic alteration of long-standing principles of sentencing. Judges properly regard the right of appeal as an essential safeguard against either undue leniency or severity of sentences.

One solution is for Government to appoint more judges so the backlog of criminals awaiting trial can be cleared up. However, there is also an onus on members of the judiciary to implement legislation that was intended to reflect the view of both the public and legislature that wholesale drug dealing is as serious an offence as murder.