Rich protected at either side of the law

Two recent court verdicts have highlighted, often through conflicting interpretations, our national fascination with the law, and our passion for justice.

The pain caused by so many aspects of the Michaela McAreavey murder trial in Mauritius has understandably received a huge amount of attention.

But the conviction of Carol Hawkins, Adam Clayton’s former housekeeper and personal assistant, for stealing €2.8m from the U2 bass player, tells us a lot more about ourselves.

Judge Pat McCartan justified Hawkins’ tough sentence on the grounds that her crime “ranks at the higher end of the scale”.

Given the history of sentencing white-collar criminals in this country, one has to wonder what scale Judge McCartan was talking about. I don’t want to make any excuses for Hawkins. Stealing from an employer is wrong, period. And stealing from a benevolent and indulgent employer, as Clayton appears to have been, is plain nasty.

One could argue, of course, that a man who cannot spot a couple of million trickling out of his bank account does not make our hearts bleed with empathy. And the decision of U2 members to move some of their tax affairs to another country has sullied their reputation in the eyes of many. No amount of promotion of human rights and donations to good causes removes the basic civic obligation to contribute towards your community’s schools, hospitals, and roads.

But none of these reservations mitigates Hawkins’ appalling behaviour. She may well deserve to be deprived of her liberty for seven years. I’m a lot more interested in why the scale of sentencing that Judge McCartan has imposed so rigorously in this case does not seem to be applied by our courts to people who have done much more damage to many of us, as individuals and as a society.

As a lay person, I would imagine that punishments, to fit the crime, should be in proportion to the damage caused to others. And I would have thought that an assault on somebody’s person was almost always worse than stealing or damaging somebody’s property.

Yet many people who have gouged eyes, broken bones, raped, or even killed, have walked out of our courts with lighter sentences than Hawkins.

You might also think, by the same yardstick of damage caused, that stealing a relatively small amount from a family struggling on the minimum wage was worse than stealing millions from someone in Clayton’s privileged position. Ethically yes, but judicially no. This would be to commit the legal sin of “exceptionality”, violating the principle that we are all equal before the law.

How good it would be if we really were. As in every other area of our society, the key principle actually seems to be: To those who have, more shall be given. Steal from the rich, and you’ll get hammered if you get caught. Steal from the poor, and no one in power may even notice.

But let’s imagine for the moment that we are all equal before the law. And let’s just stick with the kind of white-collar crime Hawkins is guilty of, and see if the scale our judicial system is currently capable of applying is indeed fair and equitable.

If stealing €3m from one individual, say, merits seven years, what should a judge hand down for making €500m disappear from the public finances? About 1160 years, if my school arithmetic serves me still.

But the problem obviously is not mathematical, it is legal and by extension political. Our current laws simply cannot grasp the slippery individuals who have brought us to our current pass. The utter impunity of those who are directly responsible for so many aspects of the financial crisis tells us a lot about what sort of society we really are.

We are the kind of society that severely punishes those who get caught stealing from the rich and powerful. But when the rich and powerful cause us widespread financial misery, through their greed or their incompetence, we turn the other cheek and give them bonuses.

The damage the rich and powerful can do to the rest of us falls into three categories, which we must be careful to distinguish.

Some offences are clearly criminal under existing law but have not yet been effectively investigated and prosecuted. Others are ambiguous, falling into a legal limbo. Others are more like sins of omission, and are not subject to any legal sanction.

If any good is to come out of our current woes, it would come from rigorous action against the first category, and radically reviewing our indulgence of the other two.

In general, the reason given for failing to prosecute actions currently recognised as crimes in the financial sector is usually that the scams of bankers and speculators are too complex and obscure to offer compelling evidence. If that is the case, we should be paying investigators more and training brighter people to fulfil this vital role.

That would be a small price to pay to stop top executives dipping their hands into our collective pockets. But I fear the main cause of our failure in this department is an extreme reluctance to investigate the affairs of the rich and powerful by those whose own wealth and power depends on their patronage.

Equal before the law, how are you? There would be even more kicking and screaming upstairs if we moved to clarify the ambiguous zones, and started calling it criminal theft against the nation when someone conceals assets from the Revenue Commissioners, Nama, or similar agencies.

As for those guilty of sins of omission, we know what to call a mechanic who fails to check faulty brakes.

But what should we call a taoiseach or minister who fails to regulate our financial system to the point where our economy runs off the road, and then walks off with a fat pension? A traitor, perhaps, as Eamon Gilmore once observed in a rare moment of clarity and courage. Come to think of it, though, we do have laws against treason. Perhaps we need to redefine them. That might be a deterrent in future. And if it isn’t, we must hope that a man with the steel and scale of Judge McCartan will be available to hear the case.

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