Political energy vital to remove vested interests from judiciary

Implementing sentencing guidelines is long overdue and, if properly implemented, could have a serious impact on the administration of justice, says Michael Clifford

SOME good is finally going to come out of Shane Ross’s buffoonery. The Minister for Transport and Stepaside Garda Station is finally getting his Judicial Appointments Commission Bill into law.

The dog’s dinner of a bill — as referenced by the Attorney General — will provide for a new vehicle to appoint judges. A committee of 13, or possibly 16 or even 17, will decide on the appointment of around 10 judges a year.

Instead of reforming the old Judicial Appointments Advisory Board, Mr Ross wanted to put his stamp on something new to demonstrate that he is taking on vested interests with his sword of righteousness. The general consensus is that the whole affair is an ego trip, being tolerated by Fine Gael to prevent the fearless Ross throwing his toys out of the pram.

Ross’s battering ram of a bill to eliminate political patronage in the appointment of judges will have practically no effect in reality. The new system will not change the character of the judiciary and certainly do nothing to improve the administration of justice.

But at least he can claim he has created a legacy for himself beyond Stepaside Garda Station, and for that the whole nation should be grateful.

He might also claim that through the hot air of buffoonery that he has encountered a stray current of common sense. Sinn Féin has agreed to support passage of the bill in return for a provision for sentencing guidelines in the bill’s companion piece, the Judicial Council bill.

Implementing sentencing guidelines is a long overdue step that most certainly can, if properly implemented, have a serious impact on the administration of justice.

Frequently, the victims of crime or those bereaved by crime appear unhappy if not baffled at sentences. At a national level, a study by the Irish Times last year showed huge discrepancies in sentencing across the State.

Earlier this year, the DPP, Claire Loftus, requested that the Court of Appeal provides sentencing guidelines in burglary cases. And just a few months ago, High Court judge Una Ni Raifeartaigh expressed herself “astonished” that guidelines were not in place for rape cases.

There is little doubt but that the untrammelled discretion exercised by judges has had over the years chipped away at confidence in the courts, and particularly the criminal courts.

It’s not that the judiciary is collectively disposed towards, for instance, exercising undue lenience in a particular area of crime. The real problem is the inconsistency. One’s judge’s slap on the wrist might be another’s draconian sentence.

Nothing more than human nature is at work, but society is no longer of a mood to tolerate the foibles and personalities of individual judges without some degree of restraint.

Sinn Féin’s proposal is along the lines of a bill drafted in 2015 which never got traction from the other main parties.

“There will be a committee within the Judicial Council which will draft the guidelines,” according to Sinn Féin Justice spokesman Donnacha O’Laoire.

Judges will be obliged to have regard for those guidelines but they will have ultimate discretion. The model we chose was the Sentencing Council in the UK.

Their aim is true, but whether the move is a success is entirely dependent on resources and political will, neither of which are guaranteed.

For an example of how not to do it look at another area of the courts, the old JAAB, which Mr Ross is killing off. The body was created in the mid-1990s after the collapse of the Fianna Fáil/Labour government over the appointment of then AG Harry Whelahan to the High Court.

It was a good idea, but floundered on the political will to ensure it operated as envisaged. Such will be the fate of any quasi-Sentencing Council unless its establishment and operation is taken as seriously as required.

The council in the UK is a good template, and tweaking where necessary or desirable would be no big deal.

The council has 14 members, eight of whom are judges. The remaining positions are filled from the legal business and civic society, and includes a victim of crime representative.

Crucially, there is buy-in across the judiciary in projects such as the Crown Court Sentencing Survey. This asked judges in thousands of courts to complete a short form every time they pass sentence. The survey was then used to formulate guidelines on sentencing. The results are also published to improve public confidence.

And there is a serious emphasis on raising confidence in the system. A few years ago, Irish born UK High Court judge Colman Treacy addressed a gathering in Dublin on his experience of the Sentencing Council of which he was a member.

“The findings of various surveys often report that members of the public believe that sentencing is lenient,” he said.

This is frequently as a result of low levels of knowledge of the criminal justice system which can be fuelled by the media.

“However, what is clear is that when the public are given details of criminal cases and are made away of the process that judges and magistrates follow when sentencing, the public’s sentencing decisions are much closer to the sentences actually passed and in some cases are more lenient.”

The guidelines in the UK are not mandatory, but whenever judges depart from the range of sentences they are obliged to provide a reason for doing so. This again provides for transparency and confidence in the system.

Will we do the right thing on this side of the Irish Sea? The jury will remain out until the Judicial Council is up and running. Unfortunately, the pace of reform in the courts system in this country is snail like, in spite of the best of intensions by some driving it.

Real change will only occur if the will to expend political energy is provided. Let’s see how that goes. Many in politics look to harvest capital by identifying with the victims of crime, particularly when they appear to be ill served by the system. Let’s see if as much effort will be put into changing the system to ensure greater confidence in how the courts operate.