In addressing the legal problems arising from court victim impact statements at a lecture in UCC, Mr Justice Carney pulled few punches in his criticism of what he, and the Court of Criminal Appeal, saw as Majella Holohan's abuse of the process under the influence of "obsessive grief" - "understandable grief" would perhaps have been a better, and more sensitive, description. He warned that judges will in future "if necessary deal firmly with a victim who wilfully abuses the victim impact procedure" while noting the need for compassion in such cases.
His main, and victim-friendly, purpose, however, may be lost in the furore over his remarks - to challenge Miss Justice Fidelma Macken over what he sees in her appeal judgment as excessive enthusiasm for formal restrictive guidelines on such statements, in part because one hard case makes bad law. And in part, he rightly argues, because making formal provision for defence lawyers pre-approving victim statements would smack of censorship by killers. He also usefully draws attention to, and is dismissive of, her suggestion that a judge should be able to use misconduct in a victim statement to justify a reduction in sentence.
Mr Justice Carney's central point on the nature of victim statements is important - their purpose in law is not "therapeutic", a means of providing closure or relief to the victim, but "assistance to the judge in selecting an appropriate sentence". Under our system, it is the faceless and collective responsibility of the State to prosecute for the victim. The administration of justice does not operate on the basis of emotive and subjective outcomes.
At this stage, though judges say they, unlike a jury, should be able to rise above prejudicial comments, it is not appropriate for a victim to suggest, by introducing new evidence or other means, that the accused was guilty of another, more serious offence. It can have no other purpose, however ineffectively, than to improperly influence the judge's discretion, to persuade him to impose a more severe sentence than he would otherwise. In this context the suggestion by Mrs Holohan's lawyer, Ernest Cantillon, that Mr Justice Carney's comments were "exculpatory" of O'Donoghue, somehow excusing his actions, is to misrepresent the judge whose purpose was clearly not to excuse but to put the sentence in the context of the actual finding of the court.
There can be little doubt, moreover, that the victim statement, its authority enhanced by its delivery as part of the formal proceedings, did provide the basis for the sort of tabloid headlines that will make rehabilitation of Wayne O'Donoghue more difficult. Most lurid was the Irish Sun's outrageous "Nothing But A Paedophile" headline, but others also ran stories which stated incorrectly as proven that O'Donoghue's semen was found on Robert Holohan's hand.
Mr Justice Carney has engendered a controversy which must be very unpleasant - indeed, hurtful - for the Holohan family. But, he raised an important issue for debate.