Mr Justice Carney was unfair to Majella Holohan and made derogatory remarks about her. It is unrealistic to expect her to sanitise her remarks for the benefit of the person who killed her child, writes her solicitor, Ernest Cantillon.
I did not want to become involved in this controversy and, in particular, I did not want to become involved in a public disagreement with a judge. However, principally because of the lack of equality of standing between Mr Justice Paul Carney and Majella Holohan, and the unfair manner of delivery of this lecture, I feel that it would be wrong to remain silent. I wish to make the following comments.
There are clearly issues to be debated in relation to victim impact statements and, in particular, how fair procedures can be applied to their delivery.
As a senior judge of the Central Criminal Court, it would be appropriate for Mr Justice Carney to participate in that debate.
I have never seen a serving High Court judge comment publicly on a case that he has recently presided over in the manner in which Mr Justice Carney has. He did so in a manner in which he portrayed the killer in exculpatory terms, and made derogatory remarks about the victim's mother. This was done at a time when Mr Justice Carney states that he knew that it would "cause pain" to Mrs Holohan. I do not understand why Mr Justice Carney could not have delivered his lecture in depersonalised terms and, had he done so, I would not be commenting.
The issue that needs to be debated is the content of a victim impact statement. There needs to be a debate as to whether or not matters of legitimate concern to a victim can be legally censored, or omitted, by judicial direction from a victim impact statement. Problems have arisen because of the absence of statutory framework, or judicial guidelines. Such statutory provision as there is (in relation to victims of sexual abuse) makes reference to the victim giving evidence as to any effect that the offence has had on the person. I emphasise the word "any".
The lecture portrays the killer in exculpatory terms, and portrays Mrs Holohan as being obsessive, and being involved in a coalition with the tabloid press in a conspiracy to frustrate the trial judge's sentencing objective.
I think a touch of reality needs to be brought to this situation. Wayne O'Donoghue is the killer of an innocent young boy. There were features in the case which Mrs Holohan alluded to in her victim impact statement, which were matters of a legitimate concern to her. If any mother became aware of these features, they would be of concern to them. The fact that these features were not part of the prosecution case, either as a result of Mr Justice Carney's rulings, or as a result of a decision by the DPP to exclude them, is neither here nor there when it comes to the victim giving evidence as to the effect that the crime has had on them. The victim does not approach the effect of a crime on him or her in the same way as a sentencing judge, who can legally distinguish between matters that are to be taken into account, or otherwise, in sentencing. It is wholly unreal to expect a victim to exclude from their mind the features that surround the killing.
The problem would never have arisen if the Central Criminal Court had in place a system for the dealing with the content and delivery of victim impact statements. Mr Justice Carney now seems to suggest, in his lecture, that victims should be confined to what was contained in the prosecution case. He may be right or wrong in this, but it is a matter for debate. One can hardly criticise Majella Holohan for not knowing that she should be confined to the prosecution case, when she was not told that by the presiding judge. In fact, when the case came before the Court of Criminal Appeal, Mrs Justice Fidelma Macken of the Supreme Court made very good suggestions as to how the victim impact statement should be delivered in future, but I note that Mr Justice Carney also disagrees with Mrs Justice Macken.
I respectfully suggest that what needs to happen is for there to be a statutory framework, or at least judicial guidelines put in place pending a statutory framework. My view is that the framework should set out what the victim can say and, if there is a dispute about it, it should be possible for an application to be made to a judge before the evidence is delivered, to determine whether or not it can be delivered. This is what happens when there is a controversy as to whether a confession should be admitted or not.
I also think it is unfair for Mr Justice Carney to suggest that victims, when they are calling for "justice", are using this as a code word for a substantial term of imprisonment. I have seen many victims give evidence where they have clearly indicated that they do not want a term of imprisonment imposed on the offender. Victims want the court, and the public, to know how they have been affected by a crime. Mr Justice Carney has a role in sentencing, but there is also a role for the public, the media and society, who are also participants in the justice system, as well as Mr Justice Carney.
The rights of the victim must be balanced against the offender's rights. After conviction, the offender's rights diminish. This is particularly so when one has a legally trained person presiding, and who is in a position to distinguish between features which can be legally taken into account when passing sentence. An injustice would have been done to Mrs Holohan if she was to give an account as to how the crime had impacted upon her, without alluding to the features that were to the forefront of her mind. Was she to be legally censored in some way or other, and prevented from saying what were her true feelings and concerns? It is not as if these concerns had no basis.
There was a basis. There may well be exculpatory explanations for these, but these are matters that require to be tested and tried. Mrs Holohan is entitled to give her view as to the effect that the crime has had on her. If there was a mechanism in place for dealing with victim impact statements none of this would have arisen.
If there were none of the features that Mrs Holohan alluded to in the case, then I would of course agree that such evidence should not be given. The features were there, and it is unfair, and unrealistic, to expect a mother of a child who has been killed in these circumstances to sanitise her statement for the benefit of Wayne O'Donoghue. Why should his rights take precedence over her rights to say how the crime impacted upon her? One may have a view one way or the other on the matter, but I do not think it is fair to criticise Mrs Holohan, in the manner in which she has been criticised, for expressing her view. It is a legitimate view. It is a subjective test that needs to be applied as to how the crime has affected a person, rather than how the judge thinks it has affected them. I will not be making any further comment on this matter.
Ernest Cantillon is a solicitor who advises the Holohan family. He is a former chairman of the Criminal Law Committee of the Law Society and a former president of the Southern Law Association. He also sits on a committee which advised the Minister for Justice, Equality and Law Reform on the qualifications of judges