LIKE MANY OTHERS I was appalled to learn on Monday of the case of Patrick O’Brien, a man who had raped his daughter ‘as frequently as having dinner’ over a ten year period.
On Monday, despite pleading guilty, he walked free from court. In his judgement, Mr Justice Paul Carney bestowed a 12 year sentence on the 72-year-old, the last nine of which were suspended. He was also awarded bail which, thankfully, has since been withdrawn.
This is merely the latest in an ongoing saga surrounding the sentencing process in the cases of rape and sexual assault with women like Fiona Doyle caught in the crossfire of a bureaucratic war.
At the heart of this dispute is the frustration of Judge Paul Carney, the only judge permanently assigned to the Central Criminal Court, who has expressed a view that there is an inconsistent application of sentencing guidelines by the Court of Criminal Appeal (CCA).
In his ruling on the O’Brien case, Justice Carney cited the need for clarity in sentencing to come from the CCA. Previously in a similar case he had handed down a custodial sentence only for it to be overturned by the CCA who awarded a reduced term of imprisonment. This is not the first time he has expressed his irritation at the CCA on its interpretation of his judgements, with criticisms going back as far as 2008 when he was reprimanded by the appeal court for awarding a sentence deemed too severe in the high profile case involving the “Scissor Sisters” Linda and Charlotte Mulhall.
The problems with the Court of Criminal Appeal
The issue here is not the lack of guidelines as the CCA has already established these for cases of rape and sexual assault. The problem which has led to Justice Carney’s frustration revolves around an inconsistent application of said guidelines by the CCA itself.
Part of the problem lies with the Courts (Establishment and Constitution) Act 1961 which established the Court of Criminal Appeal which allows for the three-member court to be made up of one Supreme Court judge (of which there are eight in total) and two High Court judges (of which there are 37 in total). There are no permanent members assigned to the CCA which has led to an inconsistency of application with its own guidelines.
By contrast, the Special Criminal Court (on which a High Court, Circuit Court and District Court Judge sit) is appointed from a permanent panel of 11 judges, drawn from all the sitting 37 High Court, 38 Circuit Court and 64 District Court judges.
Although the government appoints judges to this panel they are assigned to the court by the President of the High Court to ensure there is no breach of the separation of powers between government and the judiciary. There is a much more limited pool of judges for the Special Criminal Court and this possibly allows for a more consistency in judgements.
I am not suggesting that the CCA should mirror the Special Criminal Court exactly, but it is an example of a different way to constitute a court that has been practiced in our courts system for many years. I am not alone in this belief as it is one shared by the CEO of Dublin Rape Crisis Centre Ellen O’Malley Dunlop.
“Ireland should never be considered to be soft on rape crimes…”
It is essential that the public and victims have faith in the judicial process and therefore it is in public interest that there is a consistency in the application of guidelines, and this is particularly true in relation to sexual offences where victims are often very reluctant to come forward.
Trial judges, like politicians, are human and make errors. This is why one of the most crucial roles of the CCA is to ensure that where errors are made, they can be corrected on appeal. The CCA is there to guarantee justice and part of that process should be a uniformity of approach to ensure fairness to both the accused person and to the victim.
However, in the case of crimes of rape and sexual assault, it is unfair to place all of the blame on the judicial process. Other factors are also at play including a need for greater investment in victim support services.
Ireland should never be considered as a place that is soft on rape, which is why we need to tackle what is an academic argument and smash any obstacles that stand in the way of delivering justice for victims.
Aodhán Ó Ríordáin is a Labour TD for Dublin North Central and the Vice Chair of the Joint Committee on Education & Social Protection. Prior to entering politics he worked as a Principal in Dublin’s Sheriff Street. He tweets at @Aodhanoriordain
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