In his address last night on the role of the victim in the criminal process, Mr Justice Paul Carney had strong things to say about the victim in a high-profile case over which he presided and the conduct of the media in it. This is the supplied full text of what he said'
When I delivered my inaugural lecture as Adjunct Professor of Law in this College I said that I had decided that for the duration of my term my annual lecture would be devoted to the role of the victim in the Irish criminal process. I said that there were two great issues which must be faced:
1. conduct on the part of the victim which might lead to a liability for contempt of court; and
2. the building up by the media of selected victims into such an iconic status that other participants in the trial process, including the judge, are handicapped in the discharge of their independent roles.
I said that, in view of the fact that there were raw nerves in relation to certain cases, I would postpone these issues until later in my tenure. I believe the time has now come to face these issues. I regret that my doing so will cause pain to a victim, but the victim raised the first issue and, in my belief, by doing so largely gave rise to the second.
It would be my objective to deal with the matter on the basis of a compassionate approach towards the situation in which presented itself.
I begin with a sentencing issue. The families of those killed, or in the case of sexual crimes the victims themselves, constantly call for justice for the victim. "Justice" in this context is a code word for a term of imprisonment for the perpetrator, preferably a substantial one. It has become an established belief on the part of victims of serious crime that they have a right to demand the imprisonment of the perpetrator in every case. This is a wholly erroneous belief and that this is so can be demonstrated by the fact that in respect of the most emotive crime of all, namely rape, the Court of Criminal Appeal has on several occasions upheld a suspended sentence or declared that a sentence of imprisonment was not in any way to be regarded as mandatory and in the N.Y. case wholly set aside a custodial sentence imposed for rape in the Central Criminal Court. See 2002 4. I.R. - 309
Denham J. has said that the purpose of sentencing is about rehabilitation and not about vengeance - The People (DPP) v. M. 3 I.R. 306 at p. 317.
In The People (DPP) v. R.O.D. 4 I.R. 361 at p. 363 the Court of Criminal Appeal said: -
"It is important that this court should make it clear at the outset that in the absence of a statutory provision to that effect it is never mandatory on a trial judge to impose a custodial sentence . . . there is no question of an absolute that for certain types of offences a custodial sentence is mandatory."
In Director of Public Prosecutions v. N.Y. 4 I.R. p. 309, where the Court of Criminal Appeal wholly suspended the custodial sentence imposed by the trial court, Fennelly J. said at p. 315:-
"The fact that the crime of rape normally calls for the imposition of a custodial sentence has now been established for many years . . . nonetheless the court imposing sentence must not deprive itself of the possibility of identifying the exceptional case where a custodial sentence may not be warranted. It is a truism that the courts must sentence the offender and not the offence."
In The People (DPP) v. G.D. CCA, McCracken J. referred to the circumstances of the case as being "unusual and exceptional as they must be to justify a non-custodial sentence for rape".
In P.T. v. D.P.P., the Supreme Court, July 31st, 2007, a case which restrained the prosecution of 28 charges of sexual assault, Denham J. returned to the concept of vengeance. She said:-
"It demeans a system of justice if its process is one of vengeance or has such a perception. It evokes concepts of primitive jurisprudence. The people of Ireland under the Constitution require that there be due process in the justice system. The courts are required to protect the integrity of that system, which may mean that in exceptional circumstances a prosecution should be restrained. It is a question of proportionality."
Accordingly, insofar as the victim's concept of justice involves the imposition of a custodial sentence in every case of homicide or rape without exception, the courts cannot accommodate them and will never be able to do so.
It remains, of course, the situation that such a sentence will continue to be a rarity but it must be appreciated that it cannot be ruled out in all circumstances.
For my part, I never cease to be amazed that when the Court of Criminal Appeal wholly suspends a custodial sentence for rape or significantly reduces a sentence for the manufacture of child pornography or fatal stabbing, there isn't a peep out of anybody, but when I then follow their guidance, as I am obliged to do by law, the heavens fall in.
I referred to the admissibility of victim impact evidence in the first lecture in this series. We have what O'Malley calls a non-dispositive form of participation by the victim under which she or he does not have any form of control over the disposition of the case. What happens in practice is that the victim gives oral evidence, generally reading a prepared statement. If the victim does not wish to give evidence the court is generally either furnished with a psychologist's report or evidence is given by a garda on the victim's behalf. I am assuming that victim impact evidence is meant to be of assistance to the judge in selecting the appropriate penalty and not merely therapeutic to the victim. I am affected by the oral evidence of the victim, often highly dramatic, of the effects the crime has had on her and continues to have. I find myself able to draw very little assistance from the cold and technical language of the psychologist and in particular derive no assistance whatsoever from their obsession with the plumpness and dress sense of the victim.
Flood J. was the first to signal that the victim impact evidence procedure could be abused. In The People (DPP) v. C(M) Central Criminal Court, 16th June, 1995, he analysed the provisions of s. 5 of the Criminal Justice Act, 1993 and went on to say that a victim who sought to make use of the right to give victim impact evidence in a manner or for a purpose other than those specified in the section, would be subject to the ordinary processes of the court, including abuse of process.
Victim impact evidence achieved its greatest notoriety in a murder trial before me.
Press coverage of the trial was phenomenal. The Irish Examiner at all times had in attendance four writers and two sketch artists. The other major newspapers had colour writers present as well as reporters. All the broadcasting organisations and tabloid newspapers were represented. On the second morning of the trial defence counsel made the usual ritual complaints about press coverage. I indicated to the jury that they must only have regard to the evidence they heard in court and illustrated the importance of this by telling them that an account of the trial which had just gone out on local radio that morning had inverted the sequence of events. It spooked the press that the trial judge should be aware of what went out on local radio and I believe that this led to caution on the part of press during the currency of the trial. See Afraid of the Dark by Ralph Riegel, Southern Correspondent of the Irish Independent. This distinguished this particular trial from a long-running trial in the Circuit Court where such caution never broke out.
My impression during the trial was that there was a great deal of public sympathy for both families involved in the tragedy. The tabloid press, I believe, had not made its mind up which way to jump. When the accused was acquitted of murder and went back to prison to await sentencing on foot of his plea to manslaughter, I recall the RTÉ television coverage referring to a woman banging on the side of the prison van and saying "Good luck to you son". It is my impression, and I could be very wrong in this, that without for a moment taking from the grief felt for the victim's family, that this reflected the equal measure of sympathy felt for the family of the accused at that point in time.
The sentencing hearing was fixed for Ennis Courthouse. On the day I counted 100 press people in court. My embedded source, whose identity I will of course protect, informed me that, in a nearby hotel the night before, there were 50 journalists partying until 3 o'clock in the morning - nothing wrong with that - and running a sweepstake on everything I might do or say in the course of sentencing. Nobody won the sweepstake, or indeed got anything right.
Although I had not requested this, I was furnished in advance with an 11-page document which would be read by way of victim impact statement. This document was also furnished to the prosecution and the defence.
Following the usual Garda evidence, the victim read a statement over a period of 25 minutes. When the victim reached the end of the statement she, at breakneck speed, made allegations over a 30-second period which formed no part of the prosecution case. I endeavoured to ignore the incident and proceed with sentence but the defence requested time. By the time I got to my chambers the word "semen" was already on the airwaves and the accused was being branded as a paedophile killer, which he was not, and which the Director of Public Prosecutions never suggested he was.
When the accused was sentenced it was on the basis that what gave rise to the death was at the horseplay end of the scale and having regard to the fact that the deceased could not be brought back the sentence was expressed to be designed to provide for the reconstruction of the accused's young life. The finding of horseplay was not plucked out of the air but was based on pathological evidence. That sentencing objective was totally frustrated by an unscripted addendum to the Victim Impact Statement and the enthusiastic adoption of it by the tabloid press.
The tabloids stirred up such hatred for the accused that he has no future in this country when his time is served. This was not the intention of the sentencing judge. It is not acceptable that a sentencing objective of the High Court upheld by the Court of Criminal Appeal should be frustrated by an unwilling coalition between the victim and the tabloid press.
Nobody would have wished to add to the grief of the victims but they were given an iconic status by the media, in particular by the tabloids, which would have made it all but impossible for the victim to be held to account. The victim was acting under the influence of obsessive grief. The tabloid press do not have this excuse.
The sensational and dramatic events which happened in relation to the victim impact evidence were considered by the Court of Criminal Appeal in the Director of Public Prosecutions' unsuccessful appeal against the sentence imposed. Macken J., in the course of her judgment, said:-
"Finally, although not forming part of the rationale for the decision of this court on the application made pursuant to Section 2 of the Act of 1993, it is appropriate to say something about the role of a victim impact statement, which has been referred to in the submissions of the Respondent in this application, and which the Respondent pleads is a matter which could and should be taken into account by this Court in assessing whether or not the sentence handed down was unduly lenient. If this court had found that the sentence actually imposed was unduly lenient, and was therefore itself obliged to impose an appropriate sentence, it would have been both possible, and possibly appropriate, for this court to have had regard to the statements actually made in court and to the adverse publicity flowing therefrom, both of which are invoked on behalf of the Respondent. However, this is not the position, and this court proposes only to make general comments on the role and function of a victim impact statement and the approach which a sentencing judge should adopt in relation to the same, in light of the additional statements made, by way of addendum to the victim impact statement which she made in this case.
"While the legislature has provided that a victim impact statement may be given by the living victim of a variety of crimes, no such legislative provision exists for the family or friends of a victim of an unlawful homicide. Nevertheless, a practice has developed by which a sentencing judge has a discretion to permit a victim impact statement to be made in such circumstances. In the view of this court, that is as it should be for the reasons, firstly, that such a statement can be of assistance to the sentencing judge in determining the appropriate sentence to be imposed, and secondly, because it affords the family or friends of a deceased victim, such as in the present case, an opportunity to express the loss to them arising from the unlawful homicide.
"It is the view of this court that in the event a sentencing judge, in his or her discretion, permits such a victim impact statement to be made, such a statement should only be permitted on strict conditions. In particular, a copy of the intended victim impact statement should be submitted both to the sentencing judge and to the legal representatives of the accused, it being assumed that it will already have been made available to the prosecution. This must be done in advance of the reading or making of the statement itself in court so that both the sentencing judge and the accused's legal representatives may have the opportunity of ensuring that it contains nothing untoward. Assuming that the content of the proposed statement meets this requirement, the person who proposes making the statement should be warned by the sentencing judge that if in the course of making the statement in court they should depart in any material way from the content of the statement as submitted, they may be liable to be found to have been in contempt of court. If it be the case that such departure occurs and involves unfounded or scurrilous allegations against an accused, that fact may be considered by the sentencing judge to be a matter to be taken into account in mitigation of the sentence to be imposed.
"While great sympathy must undoubtedly exist for the person making the victim impact statement, every effort must also be made to ensure that the statement is not used to undermine the proper role of the prosecution in a trial, nor to seek to place in the public domain unfounded or unproven allegations against a convicted person who is awaiting sentence. It is essential therefore to circumscribe the delivery or making of such victim impact statement. The uncontrolled addition of material perceived by the maker of the statement to exist, or allegedly existing, such as appears to have occurred in the present case outside that presented by the prosecution, which is charged with bringing all appropriate material to the attention of the jury, could lead to an unacceptable interference in the proper prosecution of criminal offences, as well as to very significant damage to a convicted person awaiting sentence."
I would have grave reservations in relation to these guidelines. In the first instance it should be noted that, before or since, there has never been any problem in relation to victim impact evidence and I do not believe that there should be a rush to legislate or reform on the happening of each isolated, untoward event.
More specifically, the proposed procedure would confer a right of censorship on killers and rapists over their victims. Furthermore, the cautioning provision recommended by Macken J. would lend credibility to the complaint one hears from rape victims that they are the ones who are on trial. I have not heard any public reaction to the ruling to the effect that misconduct on the part of the victim should lead to a mitigation in sentence. I have absolutely no doubt that if such a ruling had come from me I would have been devoured.
It must, however, be clearly understood that the courts will if necessary deal firmly with a victim who wilfully abuses the victim impact procedure and the courts in doing so will face down any venom directed at them by the tabloid press. This is not, of course, to say that compassion should not be exercised where appropriate as for example in the case of a victim who was clearly motivated by obsessive grief as distinct from malice.
Finally, we got an interesting insight into how Mr Joe Duffy operates. In the explosive atmosphere after sentence being imposed, in ignorance of who he was, one of Mr Duffy's researchers approached a court official looking for a comment. This shatters the myth of Mr Duffy being a kindly old gentleman who sits by his telephone in Dublin waiting for it to ring.