“Write about this”, one of my colleagues said yesterday. And look, I’ll try: But where do you even start?
Violent attacker Jonathan O’Driscoll (33), who repeatedly stamped on a pensioner’s head during a brutal and unprovoked assault lasting 14 minutes, has had his 13-year jail term reduced by the Court of Appeal today.https://t.co/rjtgBa7NR1 pic.twitter.com/zOsytSgXz7
— Courts News Ireland (@courtsnewsIRL) October 17, 2022
Read the whole thread. The attack in question lasted for fourteen minutes. That might not sound like very long, but set your stopwatch, sit there, and wait as fourteen minutes elapse. And then remember that for that whole time, a pensioner was being battered and stomped.
When the Gardai came to the scene, the attacker was holding the pensioner in his arms, by the way. He pretended that he had found him like that. He got 13 years. In my book, 13 lifetimes would not be long enough. But then, I’m not the Irish courts.
Knock two years off, said the court of appeals, to help rehabilitate the prisoner.
There’s a christian impulse that says that there are no crimes which are, truly, unforgiveable. There’s a liberal doctrine which says that everyone deserves a second chance. There’s a question of consistency, too, which might make the courts wonder whether this guy just got unlucky in his original case in not drawing a more lenient judge. Perhaps he did. After all, as we’ve established, it’s very hard to get sent to jail in Ireland these days for something so minor as a violent assault.
But if other judges are lenient, then decisions like this are a major reason why. It might seem ridiculous to a layman, but it’s a point of pride for Judges how often, or how rarely, their decisions are overturned on appeal. If the appeals courts are upholding your decisions, it is believed, then you are doing it right. If the appeals court is modifying your decisions, then you are judging wrong.
So; what signal did the appeals court send to Irish Judges yesterday? I think the answer to that one is obvious: If you’re going to err, err on the side of leniency.
In a democracy, the judiciary should of course be independent of politics. But what does that mean? It means, for example, that it would be entirely inappropriate for a Minister to call a judge in advance of a case to discuss a sentence. What it does not mean, though, is that the elected part of the state should ignore it when the independent judiciary is making a mockery of justice.
Two years ago, for example, I wrote that the Oireachtas should impeach Martin Nolan. I do not regret writing it, and I think time has proven that article more prescient than I’d have liked. If a Judge is going to consistently allow people who have committed violent crimes back onto the street, then there is a legitimate public interest in removing that Judge from office, and replacing him with a Judge who is more likely to prioritise punishment over “rehabilitation”.
When I wrote it, several members of the legal profession who read these pages were appalled: They pointed, in emails, and in person, to two things in Nolan’s defence. You can probably guess what the first one was – that he’s very rarely, if ever, overturned on appeal. And the second one was that he generally adheres to sentencing guidelines. Both of those things may be true, but that does not mean we need to accept them. For example, the court of appeals showed its value yesterday, did it not?
None of this is beyond the power of the Government, or the Minister for Justice. This being a democracy, they could introduce a sentencing reform bill if they wished, tomorrow, making prison a mandatory sentence for assault causing harm. Another thing they could do, which would be a major reform, would be to empower juries to have a voice in sentencing, which is the case in the United States, where sentences are much longer. That suggestion, I know, will also horrify legal eagles, but, who cares? If a Jury is empowered to find a person guilty, then why should a jury not also be empowered to recommend the appropriate sentence, from a range of options provided to it by a judge?
One of the problems with Judging, a family member who was once in the trade said to me, is that you become numb to the horrifying facts of an individual case. There comes a point where you’ve seen it all before, and stop being shocked. That’s understandable – who could do the job, if they weren’t able to look at images of a child being abused during the day, and then eat a pleasant dinner with their own children at night? If the facts of a case enraged and angered you, you probably couldn’t do the job.
At the same time though, shocking crimes cannot really be appreciated, I’d argue, by people who have lost the power to be shocked.
Ask yourself this: Would a jury, yesterday, have recommended that this sentence be reduced? Or that it be extended? When the general public would come, regularly, to entirely different decisions than those arrived at by the justice system, I’d argue that system is no longer really working.
It’s time for reform. And yes, by the way, it’s still time to impeach Martin Nolan, and remove him from the bench.