One judgment from on high will not end the disquiet down below

THE Supreme Court — that august body which is the last court of appeal in the land — quite understandably never expected a judgment to be handed down from above.

And certainly not by a justice of the High Court.

Yet, from the ultimate appellate court known to man, Mr Justice Sean O’Leary of the High Court, who died shortly before Christmas, imparted some of his legacy from beyond the grave.

It was an unprecedented, controversial and extraordinary criticism of the Supreme Court.

Unprecedented, because no judge of any court has ever publicly criticised another member of the bench and, in doing so, he broke an unwritten rule.

Controversial, because it concerned the Supreme Court reversal of a High Court decision in the infamous ‘Mr A’ case which had the country gripped by fear.

Extraordinary, because the remarks came from beyond the grave — a position which put Mr Justice O’Leary, quite literally, above the law, unlike those who appeared before him.

So far, his brethern on the Supreme Court have observed the unwritten rule of never commenting on reaction to their judgements or, in this case, maybe it’s that age-old respect for the dead.

Whatever the reason, they remain silent, even if the country as a whole certainly did not when the High Court decided to release Mr A, who was convicted of a heinous and terrifying sexual act against a minor.

In fact, so outraged was the country by the court’s decision that the State appealed the ruling and the Supreme Court ordered his re-arrest.

It might be remembered that others were lining up to take advantage of the legal lacuna which involved the non-recognition of the defence of honest belief about a person’s age.

Mr Justice O’Leary, a former Lord Mayor of Cork, in his posthumous statement, said he was not in a position to make such observations while still a serving judge.

He could have resigned and made the criticisms, had he wanted to, but he chose to remain silent and continue in the High Court with all the trappings and prestige it confers. Somehow, had he followed the former course, his observations might have been all the more worthwhile.

Thankfully, there is no rule, unwritten or otherwise, that judges cannot be criticised.

Towards the end of last year, the Director of Public Prosecutions (DPP), James Hamilton, said judges should have a clear “starting point” for imposing jail sentences, and if they deviated from it when handing down sentences, they should explain themselves.

He is the State’s chief prosecuting lawyer and it is very unusual for him to be outspoken, but on this occasion a journalist from the Irish Examiner found him in rather loquacious mood, off script, after the launch of new publications issued by his office.

His comments made great sense. He said judges took exception to accusations of inconsistency in sentencing patterns, but they were reluctant to set measurable standards by which the consistency of sentences could be judged.

In other words, it is confusing and confounding, if not downright frustrating, to see two judges give totally different sentences for largely similar crimes. Very often, people feel justice in this country is quite a fickle thing, depending on the humour of judge. There could be a very reasonable explanation as to why a comparatively lenient sentence was handed down in a seemingly serious conviction, but the judge doesn’t explain simply because he or she doesn’t have to do so.

So, it’s hardly surprising that people feel the judiciary are out of touch and should be sent collectively on a FÁS course on reality. Some members of the bench, if not all, can get quite tetchy when they come in for a bit of criticism.

Just before Christmas, most of the senior judges boycotted a reception hosted by Tánaiste and Justice Minister Michael McDowell in protest at his remarks about their failure to implement the law on bail and mandatory sentences for drug-dealing.

If it wasn’t a boycott as such, then it was the first time in the history of the State that most of the 40 High Court and Supreme Court judges arrived at the same decision in the same case.

The minister had said there was a need for more consistency among judges on the issue as there was anecdotal evidence that some people charged with serious crime were waiting to apply for bail before certain judges because they believed they were more likely to get it from them.

MINISTER McDowell’s remarks followed the revelation that almost all of the 24 associates of drug dealer Martin Hyland had been granted bail despite garda objections. It will be recalled that unfortunate apprentice plumber Anthony Campbell was brutally murdered in the same house where Hyland was shot dead.

The minister’s point was that the 10-year mandatory minimum sentence was not being imposed by judges in many serious drugs cases, in addition to frequency with which bail was being granted to people charged with serious drugs and gun offences.

Despite the fact that Supreme Court judge Adrian Hardiman indicated that the courts would not be influenced by “strident and repeated public comments”, it seems as if, with due respect, they have at least listened.

This week another member of the Supreme Court, Mr Justice Joseph Finnegan, said the judiciary were “looking at the establishment of a sentencing information system along the lines of systems currently being developed in other jurisdictions”. At the same time he said public disquiet about inconsistent sentencing was without basis. There is every reason that the public should be concerned because it seems about 80% of serious drug dealers escape the 10-year mandatory minimum sentence for the possession of drugs valued at €13,000 or more.

Whether the problem is inconsistent sentencing, low detection rates, insufficient garda resources, not appealing sentences, or a failed Government policy, there are real grounds for disquiet among law-abiding citizens.

This disquiet is not new, but it grew enormously following the upsurge of criminal violence just before Christmas when all those casual killings made it seem the drug dealers were above the law.

People were fed up of the revolving door out of jail and the fact that it seemed pointless even to report a crime — especially rape.

There was Myross, the Morris Tribunal on garda corruption and, quite frankly, it seemed there were areas in the country that the gardaí couldn’t enter.

Even before the minister’s outburst, supported rather timidly by Garda Commissioner Noel Conroy, DPP James Hamilton had said ordinary people saw sentencing as a “lottery” that doled out different penalties for similar crimes.

Mr Hamilton, no more than the minister, would not be disrespectful towards the judiciary — but they are not, and should never be, above criticism.

Incidentally, as Mr Justice Hardiman pointed out, little attention had been devoted to that feature of the sentencing regime under which the DPP could seek to have a sentence reviewed by the Court of Criminal Appeal if he considered it to be unduly lenient.

The judge was absolutely right when he said the courts would not be influenced by “strident and repeated public comments”.

They shouldn’t have to be, but there is something wrong somewhere in the criminal justice system when the shadow of the Justice Minister falls dangerously on the vital dividing line between the executive and the judiciary.