The public outcry that followed a decision by Mr Justice Paul Carney to grant bail, pending an appeal, to a 72-year-old sex offender who raped his daughter over a nine-year period was predictable. Perhaps that was the intention. Imposing a sentence of 12 years, with nine suspended, the judge noted the Court of Criminal Appeal had overturned one of his earlier judgments and he expressed dissatisfaction with the Director of Public Prosecutions. Those remarks suggest the need for thicker judicial skins and clearer guidance on sentencing policy at all levels.
Support groups for victims of rape have been particularly vociferous. They believe that because the offender had walked free on bail following a guilty plea, the realistic expectations of the victim had not been met. The outcome, they suggested, had been influenced by the judge’s difficulties with the Court of Criminal Appeal.
Mr Justice Carney is one of the most experienced members of the bench. It is not the first time, however, that he has clashed with the Court of Criminal Appeal. In 2007, a judgment was overturned because it was regarded as too lenient; in 2008 a sentence was suspended on the grounds of the offender’s ill health. By making the unusual decision to grant bail, pending an appeal, the judge appeared to anticipate that his sentence would again be overturned in this case.
Judges have a difficult job. Any sentence they impose must be proportionate and reflect the gravity of the offence. It must also have regard to any lapse of time – more than 30 years in this instance – and take into consideration the personal circumstances of the offender. An added difficulty is that decisions by the Court of Criminal Appeal are unpredictable because its membership changes. All of these factors give rise to inconsistent outcomes and public dismay. The answer will not be found in mandatory minimum sentences. It lies, instead, in greater judicial co-operation and the provision of detailed guidance on sentencing policy.