Juries conducting independent online research during criminal trials is a major problem, a retired senior judge has warned.
Garrett Sheehan, who stepped down from the Court of Appeal last month after a decade on the bench, was speaking after the collapse of the trial of a man accused of kidnapping a couple and their baby during the robbery of a post office. The case collapsed when it emerged a juror was conducting independent research, despite being warned not to.
Since Sheehan spoke to The Irish Times, another trial, that of a child minder accused of assaulting a 10-month-old baby, has collapsed because a juror was googling one of the witnesses.
“It’s a big problem. Warning jurors not to do it may be an invitation to do it but you do your best. Generally judges would say you can trust Irish juries.”
“[The internet] is a concern because my generation knows so little about it, and I think there’s a big effort now among judges to try and educate themselves about it.”
Sheehan was one of the first of his peers to deal with a criminal case involving social media. In 2014 he heard a case involving a man who was acquitted of rape but convicted of criminal damage by putting up an offensive Facebook message using the complainant's account.
The judge asked how he was supposed to assess the damage if nothing was physically damaged. The man received a €2,000 fine.
The former judge also said Ireland should change how it sentences murderers and examine new ways of conducting rape trials.
Sheehan said Ireland’s automatic imposition of a life sentence for murder in all circumstances “absolutely needs to be looked at”.
Sheehan, who presided over many murder trials when he was a Central Criminal Court judge, said not all murders were the same, and the one-size-fits-all sentencing regime needed to be reassessed.
“Murder happens in different circumstances and there’s perhaps a difference between somebody killing somebody in a fight or a bar-room brawl and somebody getting a gun and going out and shooting somebody after waiting for them all day.”
A 2013 report by the Law Reform Commission (LRC) recommended the mandatory life sentence for murder remain in place, but allowing judges to set a minimum term, similar to the UK system.
The commission also makes the point that the current regime means that nearly all murder accused plead not guilty, necessitating a costly trial and placing additional stress on the families involved.
Sheehan said a minimum sentencing system may be the answer but stressed that care was needed to “not minimise the consequences of taking a life”.
“You can imagine how hurt and distraught some families of victims are even if it’s happened by accident. That has to be remembered.”
Sheehan made the comments in an interview with The Irish Times following his mandatory retirement just before his 70th birthday.
Sex crime victims
On the subject of how sex crime victims are treated by the court system, Sheehan said Ireland could learn from other countries, including jurisdictions which use a less confrontational approach to trials.
Ireland has one of the lowest conviction rates for rape in Europe and victims' groups frequently protest that the trial process is re-victimising complainants.
“I’m not entirely sure that the adversarial system is best suited to this type of case but it’s what we’re stuck with,” Sheehan said.
“It seems to me that these cases are tried on the continent as well, and I’ve often wondered what happens there under their system. We really need to look at what’s happening in those countries to see if we are treating victims any worse or any better.”
Sheehan began his career as a criminal defence solicitor in the Dublin District Court. He was part of a generation of young lawyers, many of whom would go on to have highly successful careers on the bench. The late Supreme Court justice Adrian Hardiman was a peer.
Along with Hardiman and Pat McCartan, a criminal defence solicitor who was later appointed to the Circuit Court, Sheehan developed a reputation for challenging the evidence against his clients at a time when nearly all defendants simply pleaded guilty.
“People started contesting cases with a greater degree of regularity, and to a certain extent a lot of the judges were very open to that,” he said.
Acquittals
Although many of his clients were hardened criminals, Sheehan also became the go-to solicitor for men being prosecuted for homosexual activity, which remained a crime until 1993.
Sheehan was able to secure acquittals for many men, but he believes his main role was advising them about the process.
"There weren't a great many prosecutions but there were prosecutions none the less. David Norris frequently brought people in to me to represent them, and a lot of people were very frightened by the whole process. Having someone like David there and the rest of them [other activists] was a great help, to put them at their ease and try and guide them through the process. That was the best you could do in some cases.
“There was one particular judge. . . [who] did send people to jail. I’m sure they got out in the Circuit Court when the cases were appealed. But there was that edge to it.”
In the following years Sheehan built what remains one of the biggest criminal defence practices in Dublin, Sheehan and Partners. However, he left it behind when he was appointed to the High Court in 2007, only the second solicitor to be appointed to that jurisdiction.
Public scrutiny
Unlike many new judges, Sheehan didn’t find his new role isolating, but he did miss the rough and tumble of a thriving law practice.
“I loved going into work every day, I liked the people who I worked with, and it was quite a change moving from there to court where you were on your own, where you weren’t part of a team.”
There was also the added public scrutiny that comes with becoming a judge.
“I think you have to [step back from society]. When you take on that role certain responsibilities go with it, and a certain standard is expected of you and you do have to pull back. You can’t participate in any type of public debate that’s going on. You can’t go around shooting your mouth off about things.”
Although he can now be a little more vocal, he still remains taciturn on some issues. He refuses to get involved in the debate started by Michael McDowell when he said in the Seanad last month that the quality of new judges has declined due to pay and pension cuts.
Sheehan will only say that he was “surprised” by the remarks. “Particularly in view of the dedication of those who chose to become judges.You have to remember that it’s a choice for people, and if you were simply going into the job for financial reasons, I’m not sure that would be good enough.
“It may be that some people decide that ‘I’m going to make a lot more money at the bar or as a solicitor than as a judge’, but are the best professional lawyers necessarily going to become the best judges?”
In recent years judges have privately expressed concern about their safety in courtrooms. These worries have been prompted by courthouse protests by anti-repossession groups around the country and the removal of gardaí and tipstaves from courtrooms due to budget cuts. Matters were not helped when a barrister was punched in the face by a murder accused recently.
“I think there is some concern about it [general safety in the court] and particularly in the area of family law where emotions run extremely high,” Sheehan said. “And there was an incident some time ago in the District Court in Dublin [when a family court judge was assaulted]. Obviously judges have to be protected from that.”
Waiting lists
Sheehan’s memories of his time on the bench are mostly positive. He said he will particularly miss working as part of a three-judge panel on the new Court of Appeal which has been credited with significantly reducing waiting lists for cases. However, he warns against complacency.
“I do think the level of work may be difficult to sustain. Everyone did their level best to make sure it got off to a good start and worked as hard as possible. I think because of everyone starting off together it was a good place to work. People have different views of course, but I found it very healthy.”
Sheehan is optimistic about the future of the Irish judicial system. He sees improvements in prison conditions, including training and drug treatment, which he believes will help reduce Ireland’s stubbornly high recidivism rate. He believes much of the misery seen in Irish courts is caused by the lack of a father figure in offenders’ lives.
“I did the [High Court] minors’ list for one or two years, and it’s extraordinary the suffering that happens in some cases. We expect social workers and the HSE to father and mother these children. It’s an extraordinarily difficult task.
“I remember one case, this child from the west of Ireland who was 13 years old and had been in 40 placements since the age of three, abandoned by his father and intermittently abandoned by his mother.
“What’s happened in our society today is we have allowed the role of the father to be undermined to our great detriment in human terms but also in financial terms; and one of the things we have to do is encourage young men to be responsible for their children.
“We really have to go back and start at that point. We’ve allowed the position and importance of the father to become eroded.”
