It is intriguing to see the differing responses to Mr Justice Paul Carney's lecture in UCC regarding victim impact statements and whether the media can effectively handicap a judge and make it difficult for him to carry out his independent duties, writes Breda O'Brien
For example, and this is a view with which I have sympathy myself, some people believe that he has marred the effectiveness of his arguments by his inability to empathise with a mother whose son has been murdered, and who could not find answers to questions that were plaguing her. To refer to Majella Holohan as someone motivated by "obsessive grief" is to belittle what she and other family members in similar situations have endured.
Most parents would not consider her grief obsessive, but a legitimate response to an unimaginable suffering. Remember that this family did not have to just endure the death of a son, but days of agonised searching. I cannot even imagine what it must have been like to discover that he had been dead for days and dumped almost immediately. Majella Holohan's son's body spent yet another night out of doors even when found. His family never got to hold him or say goodbye. It would be enough to drive most parents to madness.
Yet it was striking on RTÉ Radio 1's Morning Ireland programme during the week, how unwilling the spokesperson from AdVic, the support organisation for families bereaved by homicide, was to criticise the judge. She even went so far as to say that he was a friend of victims.
Even more striking for this writer was a conversation with an accused person who had appeared before Mr Justice Carney. By any objective reckoning, this person had been treated most harshly by him. Yet this person would not hear a bad word about him, and was unwilling to allow the case to be used in any way to damage him. Evidently, Mr Justice Carney is a person who inspires strong emotions, including loyalty.
The symbol for justice is a blindfolded woman, impartially balancing the evidence. In reality, what approximates for justice is a messy process, involving flawed and complicated human beings, and sometimes justice is so obviously denied to a family, as in the case of Brian Murphy, as to bring the whole system into disrepute.
Objectively speaking, Majella Holohan did abuse the victim impact statement. She introduced the now notorious question of semen, although it was not considered strong enough evidence to be admitted, and for which there is an entirely different explanation from the one the tabloids fell upon. By presenting it in the way that she did, she damaged Wayne O'Donoghue, possibly beyond repair.
If our justice system is to operate at all, it must do so in the interests of all concerned. Mr Justice Carney made an important point about the aims of the justice system, which must not be vengeance but, where at all possible, reform and rehabilitation.
This is a deeply unpopular view of justice, which more and more nowadays consists of baying for blood, even in circumstances where the victim pleads for leniency towards the offender.
On the other hand, families who have been bereaved by violence are lost in the system. The majority of people who find themselves embroiled in a serious case have rarely if ever even set foot in a court before. It should not be up to a charity like AdVic to provide information and help to get through the trauma of a trial. It should be available as a right to families.
As Mr Justice Carney has pointed out, abuse of the victim impact statement is rare. Yet the rare occasions when it does happen are more than connected to the sense of helplessness felt by families who often feel like powerless bystanders while legal processes grind remorselessly on.
If justice is to be done, it must take into account all those damaged by the serious crime. As it is, rape victims do feel that they are on trial, and barristers have expressed serious concerns about securing convictions even where the accused is patently guilty. The victim impact statement exists as a right in such cases, but only in custom and practice for families where the victim is dead.
It is time that flexible and compassionate guidelines were put into place, including direction by the judge in the case. The public are inclined to see such statements as therapeutic. As Mr Justice Paul Carney says, they are also a valuable aid in deciding on the sentence, although perhaps the Holohan family would find it difficult to see that is the case.
Another valid point made by the judge is that there is something deeply distasteful about the feeding frenzy whipped up by distressing cases. There is a problem not only when elements of the media are concerned with building up a victim to iconic status, but when they demonise and vilify people involved in a case. There is an ugly tendency for open season to be declared once a person has been convicted, when it is presumed that anything at all can be reported, as the person no longer has a reputation to protect.
This is a major factor in the creation of a culture of vengeance and condemnation.
Yet it must be said that the voyeuristic nature of some coverage is as a direct result of the insatiable appetite of the public for every little detail. Gruesome cases appeal to something atavistic in us, or perhaps it is an almost superstitious dread of such events befalling us that makes us avid consumers of other people's grief.
As the parents of Madeleine McCann discovered, too much faith in the power of the media to generate publicity can lead to a backlash. The Great Sage of Kildare, Charlie McCreevy, was more on target when he declared that being too friendly with the media was like keeping a lion in the back garden. Someday it will get hungry and turn and eat you.
For all his condemnation of certain elements of the media, Mr Justice Carney has proved no slouch at bulldozing his way into the headlines. If it was his intention to trigger a debate, it has certainly worked. His method of triggering that debate remains open to question.