ANALYSIS:Judges need to tread very carefully when speaking off the bench, writes CAROL COULTER
MR JUSTICE Paul Carney’s speech in UCC got very wide media coverage when it was made on June 10th, 2008. In it he said the number of fatal stabbing cases coming before the Central Criminal Court was on the rise and that a steady pattern of increase was expected.
He also said that his Central Criminal Court colleague Mr Justice Barry White had endeavoured to do something about “the fatal stabbing epidemic by introducing a deterrent sentence”.
One of his more controversial remarks during that speech was that he was seeing the emergence of a new category of stabbing, where members of the immigrant community, who had not integrated into Irish society, would buy vodka or beer in an off-licence. They would drink it in a flat and a row might break out – a person might reach for a kitchen knife and stab another.
He delivered this speech four days after the start of the trial of the Dumbrell brothers for stabbing Christy Cawley, over which he was presiding. The trial was to continue until their conviction on June 20th.
Their lawyers argued before the Court of Criminal Appeal that he had “erred in law and in fact” by failing to discharge the jury during the course of the trial, in circumstances where the jury might be biased against the accused due to “adverse publicity” attaching to the lecture delivered during the trial.
Yesterday, the Court of Criminal Appeal, presided over by the Chief Justice, Mr Justice John Murray, agreed.
This is not the first time that Carney has been criticised by a chief justice for being prepared to speak about issues of criminal justice that might impinge on cases before him. In 2004 he pulled out of a conference in Dublin on the criminal justice system when the then chief justice Ronan Keane objected to remarks he was about to make. The chief justice had been going to open the conference, but said he was unable to do so if Carney’s paper went ahead.
The paper concerned Carney’s policy of sitting outside of Dublin and in it he pointed out how the heavy security around one particular case in Limerick may have contributed to the difficulties of empanelling a jury; but he stressed that other cases had gone ahead without any problems.
Through a spokesman for the Courts Service, Keane objected to three elements in the paper: the fact that it referred to matters in the recent past or still current; the fact that these matters may present themselves before the courts in another form (by way of appeal); and his concern that judges should not talk in public about cases over which they had presided. This can be taken as the authoritative judicial view of the constraints that exist on judicial comments off the bench.
Carney made no reference at all to the Dumbrell case in his Cork speech, but his dwelling on the issue of stabbings could have been seen as sufficiently close to the case he was presiding over to be problematic.
This is not to say that judges cannot comment on the criminal justice system, and some have done so.
The issue here is whether the perception could exist that such comment relates to a case over which they are presiding, and where they have the responsibility of guiding the jury.
Carney is one of the more prolific commentators on the criminal justice system, and receives considerable media coverage as a result. This causes some disquiet in both legal and judicial circles. Nonetheless, it is important that forums do exist where the collective experience of the judiciary in dealing with crime and other issues can contribute to public debate.
This is not the first time either that the Court of Criminal Appeal has criticised a decision of Carney, which has not endeared that court to him. “It is more and more the case that appellate judges have never had the responsibility of conducting a criminal trial themselves,” he said in that same Cork speech.