Over many months of reporting on cases where individuals caught with child sex abuse material, or child pornography as it’s referred to in law, the name of one judge has come up over and over in online commentary.
When posting an article on the topic, I often see comments which say something along the lines of, “Let me guess, Nolan again?” which you may have already guessed is a reference to Circuit Criminal Court judge, Martin Nolan.
It’s become somewhat of a trend to reply to articles one has not actually taken the time to read with comments like, “Nolan?”
The reason why many people – monsters I would call them – get their custodial sentences suspended is because of the legal precedent set by a 2006 Court of Appeal decision called DPP vs Loving.
It is important to note that Judge Nolan has been repeatedly asking representatives of the Director of Public Prosecutions (DPP) who are prosecuting these cases if Loving is still the precedent.
I have personally heard him doing so from the bench on several occasions.
As an experienced judge, I would hazard a guess that he knows full well that it is still the relevant precedent, but is trying to make somewhat of an issue of the situation, in as much as he can in his position.
Politicians, not judges, are the ones who have the power to change this, so if anyone feels understandably disgusted that people who enjoy videos of little kids being raped are being spared jail, this is where to direct your feelings.
To expand on what DPP vs Loving actually is, the case refers to Carl Loving, an American immigrant and convicted conman, who was found in possession of 783 images of child pornography.
Loving had also conned several victims out of money; failed to appear in court; and generally behaved as a disreputable character. As the appeal verdict notes, “the trial judge expressed regret that the maximum sentence for the (child pornography) offence was five years imprisonment”, and imposed the maximum. In other words, the Judge had wished to impose a longer sentence than five years, but ran into a hard limit imposed in legislation. Nevertheless, Loving appealed.
The court of criminal appeal, in a decision by now-retired Judge Nial Fennelly, sided with Loving, and reduced his sentence to six months imprisonment. The court found that Judges have a duty to take mitigating circumstances into account, declared that the offences were on the lower level of seriousness, and reduced Loving’s sentence on the headline count to six months imprisonment, which he had by that time already served. Loving walked free from jail shortly thereafter.
And so as things stands, when someone caught with this unspeakable filth – and make no mistake, that is what it is – has no aggravating factors attached to them such as relevant previous convictions, distribution, or production of the images, Irish judges are obliged to consider a suspended sentence.
This is all taking place with the backdrop of chronic overcrowding in Irish prisons, which the government – along with the Loving precedent – has failed to remedy.
However it has to be said that while Judge Nolan is obliged to consider a suspended sentence, he is not obligated to give one.
Judge Pauline Codd recently jailed Dublin man Michael Kearns for his possession of grossly indecent images of children. It can be done.
While there are those who may feel that Judge Nolan is lenient with his sentences in general, to cast aspersions on his character with regard to child pornography cases is unfair and highly defamatory.
As much as this writer dislikes the term, he’s “just doing his job”.
Judge Nolan runs what is probably the busiest court in this country, and he does so in a way that is highly efficient. That’s one reason why so many stories from his court are covered in the media. He is quick when it comes to understanding the complexities of each case, and can be relied upon to pass a sentence in short order.
Despite not being the author of this horrible situation – and believe me when I saw some of the things I have heard people doing to, even infants, in these videos is enough to stop your heart – it seems unfair that one particular individual is bearing the brunt of the totally justified outrage of the public with regard to these cases.
In short, blame Loving, not Judge Nolan.