Is Judge Carney right?

[Purple]

Instead of trying to censor a victims statement, why not allow a victim to have their full say but do it in camera so it doesn't become a matter of public record. Surely the only people that need to hear the victim impact statement is the sentencing judge and the accused. It sounds like in this case, the mother felt like her son was not getting the justice he deserved and she wanted to make the court aware of her feelings. Our legal system should be humane enough to allow for this while also protecting whatever rights the convicted person has.

As far as I know that is exactly what is being proposed. I have a high opinion of the Minister for Justice, he is a barrister and has shown a good level of reasoned compassion in the past and I think this is the sort of thing that he is looking at from a legislative perspective; that the victim impact statement is heard in camera and the judge has the power to rule that some or all of it cannot be reported. I think this is a fair solution.
The old maxim that hard cases make bad laws holds true here. What is the mother of one of the two men who were shot dead in the attempted post office raid named the police man that shot her son? What if she, through her sons contacts, found out where he and his family lived. If a court found that the police officer in question had acted improperly, thus conferring the badge of victim on her son, would it be Ok for her it offer all of that information in open court without the judge having recourse to restrict the reporting of those facts? Ah, but that's different! Yes, but the next time it might not be quite so different, and the next time and the next. That's the issue here, not the grief of mother.

 

[MrMan]

what exactly did Mrs Holohan say that was not fact?

Did she not ask why semen was found on her childs body? AFAIK It hasn't been conclusively found that there was, or at least that it had any significance. Her facts as I referred to were to would seem to suggest WOD had sexual contact with the boy

 

[sydthebeat]

This probably has been mentioned before but.....

Because something is inelligible to be put forward as evidence in a case, because of legal standing, does not mean it doesnt exist...

It is widely known that DPP will argue a lesser crime that is watertight, rather than push for the greater charge with a less watertight case....

I have seen first hand, in an 'in camera' case, what can and cannot be given as evidence... in one case the whole primary interview with the accused had to be thrown out because the gardi fecked up the process of reading him his rights........ valuable information which the accused gave and later contradicted could not be given in evidence.....

personally i have no faith in the legal system, its there to be played like a game, when both victims and accused are the pawns...

 

[RainyDay]

This debate started on the topic of whether Justice Carney was right or not. Your arguments all appear to be founded on your contention that JC should meet Mrs Holohan face-to-face.
Setting aside all protocols and precedents, what purpose do you think such a meeting would serve? You appear to think Mrs Holohan is entitled to consulattion on a matter of legal importance (accepting always that it does concern her as the mother of the victim and, by extension, a victim herself.)

Sidetracking the issue into a debate on the intricacies of the Separation of Powers is something that you can debate on another thread, if you wish. I prefer to stay on topic on this one.

This post has got to be a case-study in evasion. I'm wondering if you are a politician or perhaps even a barrister by day.

You brought up the issue of 'separation of powers'. You have tried to bluster your way out of explanation how separation of powers is relevant here. Unless you can provide a clear explanation of the relevance (if any) to separation of powers, I would suggest that you withdraw this spurious claim to let the discussion move on and focus on the important issues.

JC made little other reference to the case than was made by Justice Macken in the Court of Criminal Appeal:
http://www.courts.ie/Judgments.nsf/...199d98ef9ccbd3398025720b004d2bf7?OpenDocument

Again, the evasion. My query was not about Justice Macken or the CCA. It was about your claim that the judge cannot campaign, in the light of his campaigning speech. If you have no answer as to why the Judge can make a campaigning speech but can't campaign, perhaps you could just clarify this, rather than trying to steer the discussion elsewhere.

 

[Purple]

RainyDay, do you accept that the victim impact statement could, under some circumstances, be used to unjustly blacken the name of a person that has been found guilty of a crime? If yes do you think it would be a good idea to limit in some way how the statement is reported?
I accept that Judge Carney has caused hurt to the family of Robert Holohan. I don’t think he could have avoided causing hurt when discussing his concerns around this case.
As far as I know the separation of powers means that a politician cannot directly lobby a member of the judiciary in order to influence the outcome of a case as that is a judicial function. The same goes the other way; a judge cannot lobby a politician in order to influence a legislative change. Both politicians and judges are allowed to talk about cases or laws in a suitable context but not in a forum that serves no function other than to air their views. I am not a lawyer and have never studied law so I don’t know what precedents or laws constitute this framework but given that we do, as we all agree, subscribe to the principle of separation of powers it follows that it is inappropriate for either branch to seek to interfere with the decision making process of the other, either overtly or by seeking to influence public opinion.

So could Judge Carney not have just written to a paper or given an interview, after all he was just voicing his concerns about how the courts work? Probably, but remember that he lives in a world of precedent. Throughout his whole professional life it has set the boundaries within which he work and the practice of giving lectures to the law society of their alma mater is an established precedent whereas there is none for giving an interview to the Irish Times. Either way does anyone think that the Holohan family would have been any less upset by a letter to a paper? Does anyone think that an open letter which addressed Mrs Holohan directly would have been a better idea?

 

[Marathon Man]

You brought up the issue of 'separation of powers'. You have tried to bluster your way out of explanation how separation of powers is relevant here. Unless you can provide a clear explanation of the relevance (if any) to separation of powers, I would suggest that you withdraw this spurious claim to let the discussion move on and focus on the important issues.

As I said before, the issue of the Separation of Powers, is complex and requires FAR more space on this thread than available - I reckon most viewers would move on before finishing the FIRST page. As I said in my previous post, I am NOT interested in getting into a discussion on the SoP on this board. My interst in this thread is, as stated previously, on the original topic. Start YOUR own thread on SoP and I may join in.....when this (original) thread is debated a bit more.

As Purple explains :

separation of powers means that a politician cannot directly lobby a member of the judiciary in order to influence the outcome of a case as that is a judicial function. The same goes the other way; a judge cannot lobby a politician in order to influence a legislative change. Both politicians and judges are allowed to talk about cases or laws in a suitable context but not in a forum that serves no function other than to air their views

The Judiciary does NOT campaign in public. JC's lecture was to a Law Faculty lecture. Such a forum does NOT constitute campaigning in PUBLIC. Btw, while I disagree with Catherine McGuinness' argument on the topic, she also provides some insight as to why the Judiciary cannot "campaign", as you put it.

Again, the evasion. My query was not about Justice Macken or the CCA. It was about your claim that the judge cannot campaign, in the light of his campaigning speech. If you have no answer as to why the Judge can make a campaigning speech but can't campaign, perhaps you could just clarify this, rather than trying to steer the discussion elsewhere.

I beg to differ. I believe that I, along with others, have provided sufficient reason as to why. If you want to get into a shouting match, off you go.
wrt, steering the discussion elsewhere, it is YOU that is attempting to steer the issue off track.

You want to ignore Justice Macken's judgement, in the CCA? Why? It is highly relevant to what we, the rest of us anyway, have been discussing here! Have you read it? Do you disagree with it?

My issue with you was, and is, your assertion (13 Oct - #10, 13 Oct - #12) that JC should meet Majella Holohan face-to-face, along with your assertion that the lecture was public. In the extremely unlikely event that it were to happen, I am at a loss as to what practical purpose the meeting would serve either party? I have already answered the second point.

I note also that, with the exception of your first post, which, imho, was more like a tabloid rant - please note your last line (I referred to it in a previous post), YOU have NOT commented on the issue of the thread topic, but snipe, without providing counter arguement.

 

[ubiquitous]

The Judiciary does NOT campaign in public. JC's lecture was to a Law Faculty lecture.

...with TV cameras present and copies of his speech delivered in advance to all interested media outlets.

If that's not "in public", God knows what is...

 

[Sunny]

As Purple explains :
The Judiciary does NOT campaign in public. JC's lecture was to a Law Faculty lecture. Such a forum does NOT constitute campaigning in PUBLIC. Btw, while I disagree with Catherine McGuinness' argument on the topic, she also provides some insight as to why the Judiciary cannot "campaign", as you put it.

This is a legal cop out by saying that lecturing to a law faculty is not public campaigning. The fact that he was making the keynote speech was made public, the first draft of his speech was then faxed to the different media outlets. These outlets were then informed that the draft was being changed and they received a new one where some of the more controversial language was removed. He knew and the law faculty knew that this was going into the public domain. So to say that the Judiciary cannot and did not campaign in public is wrong. If that is the case, then I think Judge Carney broke the law!!

 

[room305]

The Judiciary does NOT campaign in public. JC's lecture was to a Law Faculty lecture. Such a forum does NOT constitute campaigning in PUBLIC. Btw, while I disagree with Catherine McGuinness' argument on the topic, she also provides some insight as to why the Judiciary cannot "campaign", as you put it.

I thought Judge Carney sent out press releases before the lecture? Sounds very much like he wanted to provoke public debate on the issue.

EDIT: Post crossed with Sunny & Ubiquitous

 

[Marathon Man]

This is a legal cop out by saying that lecturing to a law faculty is not public campaigning.

Maybe it is a cop-out. It wasn't public, however I'm not denying that he did not/expect that it was going to be made public. I'm absolutely sure he knew that it would be made public. However, the lecture was to a legal faculty. This is a lot different to, say a public meeting or a media program. The intent (I presume) was to influence LEGAL, NOT public opinion. He certainly has galvanised public opinion!

The fact that he was making the keynote speech was made public The first draft of his speech was then faxed to the different media outlets. These outlets were then informed that the draft was being changed and they received a new one where some of the more controversial language was removed. He knew and the law faculty knew that this was going into the public domain.

I am not aware of exactly how the text of his speech came into the public domain, so can't comment on that aspect. However I would be very surprised if he or someone else, on his, or the faculty's behalf, intentionally put a draft, in particular, into the public domain prior to the lecture.

With regard to removing "some of the more controversial language", this is the first I've heard of that. Can you let us know where we can find a copy of that draft or otherwise reference it? Such a draft would have a MAJOR bearing on the debate both here and elsewhere. I, for one, would be very interested in reading it.

 

[Sunny]

http://www.independent.ie/national-...h-on-holohan-case-at-last-minute-1166558.html


And this isn't public campaigning????

 

[Marathon Man]

http://www.independent.ie/national-...h-on-holohan-case-at-last-minute-1166558.html

Just googled and found that one. Will read later. I'd like to see the full draft though, if anyone can reference it.

 

[Purple]

The substantive issue is still not being addressed here; was the Judge correct to raise concerns that victim impact statements can be used to influence the publics opinion of a convicted party by introducing information about that party which was ruled to be inadmissible in court? The follow if people do agree that his concerns are valid is what should be done to address them while minimising the of powers censure of the judge.
The majority of posts here are about how the message was delivered, not what the message was.

 

[Duke of Marmalade]

Purple, the concerns were correct. The way the judge rasied them, citing a particular case and quite clearly personalising his criticism against a particular victim, were IMHO quite inappropriate.

 

[A.Partridge]

These are (according to Wikipedia) the aims of a Victim Impact Statement when dealing with a serious crime such as murder or manslaughter:

One purpose of the statement is to allow the person or persons most directly affected by the crime to address the court during the decision making process. It is seen to personalize the crime and elevate the status of the victim. From the victim's point of view it is regarded as valuable in aiding their emotional recovery from their ordeal. It has also been suggested they may confront an offender with the results of their crime and thus aid rehabilitation.
Another purpose of the statement is to inform a court of the harm suffered by the victim if the court is required to, or has the option of, having regard to the harm suffered by the victim in deciding the sentence.

In cases of crimes resulting in death, the right to speak is extended to family members. In some jurisdictions there are very different rules on how victim impact statements from family members may be regarded. This is because it is seen as unprincipled that different punishments for death are given according to the how much the victim is missed, or conversely that someone's death is relatively less harmful if they have no family.

In the circumstance of death, some jurisdictions have described victim impact statements from family members as 'irrelevant' to sentence but not 'unimportant' to the process: they are valued for restorative purposes but cannot differentiate punishment for causing death.

In general terms, the person making the statement is allowed to discuss specifically the direct harm or trauma they have suffered and problems that have resulted from the crime such as loss of income. Some jurisdictions allow for attaching medical and psychiatric reports that demonstrate harm to the victim. They can also discuss the impact the crime has had on their ambitions or plans for the future, and how this also impacted their extended family.

Some jurisdictions permit statements to express what they deem to be an appropriate punishment or sentence for the criminal.
Some jurisdictions expressly forbid any proposal or suggestion on punishment or sentencing. Among other reasons, this is because the sentencing process is solely the domain of the judge who consider many more factors than harm to victims. Allowing suggestions on punishment or sentence can create a false hope of the eventual sentence and undermine the notion of restorative justice.

While one can criticise the sensitivity(or lack of) displayed by Justice Carney by referring to this tragic case directly, one cannot but feel that he was well within his rights to point out that victim impact statements need to be structured and delivered in a way that remains within the law.

As a justice of the peace he is dutybound to insist on this as no-one (not even victim's or their families) has the right to say anything which could be deemed injurious or unlawful however tragic the circumstances may be.

 

[sherib]

Posters here may be interested in a UCC Law Society public debate on Victim Impact Statements on Wednesday 25th October 07. [broken link removed]

I can't agree that censoring a V.I.S. should be recommended nor that the delivery should be restricted to the Judge and Accused. IMO the psychological benefit to the Victim and the family derives from being able to stand up in public and state the effect the crime has had on their lives.

Having said that, a V.I.S. should not be an opportunity for further demonisation of an Accused who is about to be sentenced, particularly when the matter/s raised did not form part of the trial. Is it not a basic human right to be able to defend oneself against an accusation or allegation which is obviously precluded when made in a position of privilege? The damage done is instantaneous and cannot be undone.

It should be possible for a Victim to have their questions answered by someone qualified in the legalities of a trial process. The matters raised by Judge Carney reach far beyond the particular case being discussed.

 

[RainyDay]

As I said before, the issue of the Separation of Powers, is complex and requires FAR more space on this thread than available - I reckon most viewers would move on before finishing the FIRST page. As I said in my previous post, I am NOT interested in getting into a discussion on the SoP on this board. My interst in this thread is, as stated previously, on the original topic. Start YOUR own thread on SoP and I may join in.....when this (original) thread is debated a bit more.

Ah, now we are back to the 'we're too dumb to understand seperation of powers' approach. It doesn't wash - this issue has nothing to do with seperation of powers. It's a pity that you can't bite the bullet and admit that this is a total red herring.

As Purple explains :
The Judiciary does NOT campaign in public. JC's lecture was to a Law Faculty lecture. Such a forum does NOT constitute campaigning in PUBLIC. Btw, while I disagree with Catherine McGuinness' argument on the topic, she also provides some insight as to why the Judiciary cannot "campaign", as you put it.

This is clearly nonsense. Multiple versions of press releases are sent out in advance and you claim it is not a public event. Ludicrous....

My issue with you was, and is, your assertion (13 Oct - #10, 13 Oct - #12) that JC should meet Majella Holohan face-to-face, along with your assertion that the lecture was public. In the extremely unlikely event that it were to happen, I am at a loss as to what practical purpose the meeting would serve either party?

My suggestions for a meeting was facetious. I have no expectation that his honour will sit down with the Holohans. The purpose of this suggestion was to demonstrate the cowardice involved in sitting round with his bewigged colleagues chewing the cud on theoretical issues, while a family continues to grieve for the loss of a child. I doubt if his honour is dumb enough to have been surprised by this reaction. If he is that dumb, he shouldn't be on the bench. If not, it makes it look like a cynical exercise in trying to exercise dominance over a citizen who had the guts to stand up to his honour.

 

[sherib]

This topic seems to have strayed far from the original question posed:

Originally Posted by Purple
Is Judge Carney right?

Can't help wondering if this is because it's in a "Letting Off Steam" thread which rather defeats the purpose.

Originally Posted by RainyDay
I'm not a legal expert, but I can't see any relevance of 'seperation of powers' on this issue.

Neither can I nor have any of the official media commentators raised that question. If anything this thread has shown the absolute necessity to make a clear distinction between emotion, subjective opinions and the legal system.

 

[Sunny]

This topic seems to have strayed far from the original question posed:

Can't help wondering if this is because it's in a "Letting Off Steam" thread which rather defeats the purpose.

I don't think the topic has strayed off course. I don't think many people would argue that Judge Carney was wrong to raise his concerns but I like some people strongly disagree with how he went about it. I can only imagine what it is like for the victims family to have the press turning up on their door asking to comment on a judges criticism of them in a public speech. If the concept of victim impact statements is so flawed, there must be a way for the legal profession to debate the problem without having to resort to headline grabbing speeches at the expense of a grieving family.

 

[Marathon Man]

If the judge has anything to say to Mrs Holohan, he should arrange to meet her face-to-face (maybe with a treasured photograph of Wayne) in his eyeline, and explain to her directly how important his concerns are, relative to the grief of a parent who has lost a child. I wonder if his honour has the cojones to try this approach?

My suggestions for a meeting was facetious. I have no expectation that his honour will sit down with the Holohans. The purpose of this suggestion was to demonstrate the cowardice involved in sitting round with his bewigged colleagues chewing the cud on theoretical issues, while a family continues to grieve for the loss of a child. I doubt if his honour is dumb enough to have been surprised by this reaction. If he is that dumb, he shouldn't be on the bench. If not, it makes it look like a cynical exercise in trying to exercise dominance over a citizen who had the guts to stand up to his honour.

Facetious??? Clearly it was not! Cynical perhaps, maybe even caustic, but not facetious. Nor is it a matter on which to be facetious.

Theoretical? Prompted by JCs lecture, Nora Owen, a member of the Law Reform Commission said that the LRC "needs to look at widening the scope of Section 5 of the 1993 Criminal Justice Act, which allows victims of particular crimes the right to address the court"

In its judgement on the appeal in the case, the CCA stated:

The uncontrolled addition of material perceived by the maker of the statement to exist, or allegedly existing, such as appears to have occurred in the present case outside that presented by the prosecution, which is charged with bringing all appropriate material to the attention of the jury, could lead to an unacceptable interference in the proper prosecution of criminal offences, as well as to very significant damage to a convicted person awaiting sentence

The CCA ruling supports JC's opinion that Mrs Holohan was wrong in introducing her addendum to her Victim Impact statement. So is the CCA also engaged in "a cynical exercise in trying to exercise dominance over a citizen". Clearly the CCA has ruled that she was wrong.

I note ....... YOU have NOT commented on the issue of the thread topic, but snipe, without providing counter arguement.

I think this point is still valid. Can you not provide your own counter arguments, rather than "pulpit bashing"? Let's hear some foundation/backup/references supporting your arguments on the topic (what exactly are they? I'm unclear. You obviously feel that JC is wrong, but can you offer anything more to the debate other than "letting off steam"?)