Is Judge Carney right?

Marathon Man said:

OK I can see how you might feel that way, my point was that one MUST understand the Separation of Powers if one is going to engage in informed debate on the matter.

The Separation of Powers relates to the relationship between the Legislature (Dail), the Executive (Governmant) and the Judiciary. To explain it here would take an awful long time. However to understand what the judiciary may and may not do one really does have to understand the Separation of Powers. [BTW, the Separation of Powers was one of the prime, if not THE prime difficulty in the Judge Curtin case.] See here for a brief explanation of Separation of Powers http://en.wikipedia.org/wiki/Separation_of_powers

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OK - so take it that I understand seperation of powers (as I did before your explanation, btw). So now explain why seperation of powers makes it OK for the his honour to make broadly critical statements about Mrs Holohan's actions in a effectively-public forum, but not OK for him to meet Mrs Holohan face to face (as you suggested above)?

Marathon Man said:

See Separation of Powers as to why he can't campaign.

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So he can't campaign about feedback loops, but he can make campaigning speeches about the content of victim impact statements - why the distinction?

Marathon Man said:

With the very greatest of respect, this is what this debate is about. To reduce it to a simple "should he have respect for the privacy of the Holohans" simply doesn't wash.

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My comments on this thread have been about his honour's decision to go public now on this matter. That is the issue which affected the Holohans. You (and his honour) might want to forget about this impact, but that doesn't make it go away.

If you or I lost a son or daughter in similar circumstances I wonder how we would feel. It is easy to talk when it hasn't happened to any of us, but when the shoe is on the other foot and it is your son or daughter that died on account of "horseplay" God knows how you or I would react!.

Marathon Man said:

As I said previously, "Justice Carney was expanding, primarily to interested legals, on his previous lecture." It was NOT a public lecture.

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Really? Remember, Judge Carney released copies of his speech to the media beforehand.

RainyDay said:

This is the kind of 'angels dancing on heads of pins' rubbish that seems to be hugely significant in the legal world, but have no relevance in the real world. Unless his honour is a total gombeen, he would have been well aware that his comments ... would cause substantial hurt and offence.

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I agree.

angela59 said:

If you or I lost a son or daughter in similar circumstances I wonder how we would feel. It is easy to talk when it hasn't happened to any of us, but when the shoe is on the other foot and it is your son or daughter that died on account of "horseplay" God knows how you or I would react!.

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I can tell you how I would react. I would do everything I could to take the culprit to a quiet place dredge the darkest corners of my mind to find ways to kill him as slowly and painfully as possible. I wouldn't really care of there were extenuating circumstances, I wouldn't even care if there was a reasonable doubt about his guilt. That's why I would not be allowed to sit in judgement on the accused. That's why emotion has no place in the court room. That's why comments like; "I can't see why it was wrong of Mrs Holohan to bring up the semen issue in her Victim Impact Statement. As I understand it, such a statement is so that a person affected by a crime can state how their life has been affected by this crime." have to be looked at and brought to their logical conclusion, i.e. if Mrs Holohan can bring these things up then any evidence in any case that the DPP thinks is unreliable, or the judge has ruled as inadmissible, can be brought up in court. To put it another way; the same rules and standards have to apply to all cases which are held in open court.

Harchibald said:

Were the tabloids wrong? On the more lurid headlines, yes. But in getting WOD a "heavier" penalty than our "justice" system was able to deliver, they performed a service.

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Not a service that a civilised society can have much regard for, though. They provide this 'service' to sell papers. Society needs to be aware of the dangers of tabloid journalism, whose aim in the main is to sell papers, to thrill or entertain - but not to tell the boring truth. Our society will not amount to much if we rely on tabloid media instead of the courts of justice to sit and judge us.

She abused her rights and issued statements as fact, i.e there is no conclusive evidence about semen. Just the mention of semen turned the tide against WOD a notch from killer to potential paedophile and this has coloured alot of views of this young man. I have no expert knowledge on law, but I can speak as a member of the public who feels that this case exploited by the media because WOD was from a 'good' background - how many murders and rapes receive such coverage. I feel that the judge was right in this case with his statement.

MrMan said:

there is no conclusive evidence about semen.

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My understanding is that the presence of semen was verified conclusively. The problem arose with determining the origin of the semen found.

If you read Mrs Holohan's statement, you will not find any untruths there.

MrMan said:

She abused her rights and issued statements as fact, i.e there is no conclusive evidence about semen. Just the mention of semen turned the tide against WOD a notch from killer to potential paedophile and this has coloured alot of views of this young man. I have no expert knowledge on law, but I can speak as a member of the public who feels that this case exploited by the media because WOD was from a 'good' background - how many murders and rapes receive such coverage. I feel that the judge was right in this case with his statement.

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This 'young man' still killed her son. I am not sure making him out to be a paedophile made the public think any less of him than they already did. And the media didn't 'exploit' the case because of his background. It was such a big story due to his actions afterwards. People just couldn't understand it. As Justice Carney himself said in his sentencing remarks

After the death, the cover-up was appalling. There can be no excusing what was done. There can be no mitigating of what was done. The cover-up caused incredible grief and distress to the Holohan family. It permitted of the body being mutilated by animals, it tied up the emergency services of the State over a protracted period and caused the people of Ireland as a whole to join in the Holohans' grief. It cannot be dismissed as being due to panic, by reason of the calculation and deliberation involved.

I don't think she was right to make the comments in her victim impact statement either but I also don't think WOD was hard done by when she said it. At least he can have some form of life somewhere after his sentance no matter what the public think of him.

RainyDay said:

So now explain why seperation of powers makes it OK for the his honour to make broadly critical statements about Mrs Holohan's actions in a effectively-public forum, but not OK for him to meet Mrs Holohan face to face (as you suggested above)?

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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.

So he can't campaign about feedback loops, but he can make campaigning speeches about the content of victim impact statements - why the distinction?

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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

"It is the view of this court that in the event a sentencing judge, in his or her discretion, permits such a victim impact statement to be made, such a statement should only permitted on strict conditions. In particular, a copy of the intended victim impact statement should be submitted both to the sentencing judge and to the legal representatives of the accused, it being assumed that it will already have been made available to the prosecution. This must be done in advance of the reading or making of the statement itself in court so that both the sentencing judge and the accused’s legal representatives may have the opportunity of ensuring that it contains nothing untoward.
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While great sympathy must undoubtedly exist for the person making the victim impact statement, every effort must also be made to ensure that the statement is not used to undermine the proper role of the prosecution in a trial, nor to seek to place in the public domain unfounded or unproven allegations against a convicted person who is awaiting sentence. It is essential therefore to circumscribe the delivery or making of such victim impact statement. 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."

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Is there any suggestion that the CCA should meet victims??

My comments on this thread have been about his honour's decision to go public now on this matter. That is the issue which affected the Holohans. You (and his honour) might want to forget about this impact, but that doesn't make it go away.

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There was little furore when the CCA made its judgement in the case. The media created an unnecessary frenzy - see Purple's analysis for comment on this. As regards my "wanting to forget about this impact", you clearly haven't read my closing lines in both posts yesterday.

You will note that I haven't made any comment on the substantive issue of the eligibility of this evidence. I really feel I don't know enough about this case to comment sensibly on this.

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Perhaps you might take a bit of time to read the judgement of the CCA, along with JC's script from last week and see what they both have in common and also how they differ.

The problem arose with determining the origin of the semen found.

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Which is quite a problem, when the implications put forward are thatthe origins were there throught he improper actions of WOD.

I am not sure making him out to be a paedophile made the public think any less of him than they already did

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It would definietly colour peoples views. Yes he paniced and made things a hell of a lot worse for all involved, but to say he may have abused the child would make him a monster instead of a seemingly normal young man who brought this misfortune upon himself.

And the media didn't 'exploit' the case because of his background. It was such a big story due to his actions afterwards. People just couldn't understand it.

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I believe that they couldn't understand it because of his background and how normal he appeared, if he was from a disadvantaged area they could write about his poor background drug problem etc, but this normal looking kid let us know that such tradgey could be close to us all, it was the perfect case for the media because fear sells as much as anything else.

MrMan said:

She abused her rights and issued statements as fact, i.e there is no conclusive evidence about semen.

The problem arose with determining the origin of the semen found.

Which is quite a problem, when the implications put forward are that the origins were there throught he improper actions of WOD.

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The fact remains that Mrs Holohan's statement did not include any misstatements or untruths.

MrMan said:

It would definietly colour peoples views. Yes he paniced and made things a hell of a lot worse for all involved, but to say he may have abused the child would make him a monster instead of a seemingly normal young man who brought this misfortune upon himself.

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Apparently it is now a bigger sin to sexually exploit a child than to kill them, hide their body, attempt to burn the remains and then to make false insinuations against their parents.

ubiquitous said:

The fact remains that Mrs Holohan's statement did not include any misstatements or untruths.

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Court of Criminal Appeal:

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.

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Apparently it is now a bigger sin to sexually exploit a child than to kill them, hide their body, attempt to burn the remains and then to make false insinuations against their parents

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Sexual abusers of children tend to be considered the lowest form of life at least that is what I contend. Even through the eyes of criminals sexual crimes are rated as the most heinous especially against children. The other matter in this case is that it would seem that there was a brother like relationship between the two and the death of Robert did seem to be a freak accident or at the very least accidental.

MrMan said:

The other matter in this case is that it would seem that there was a brother like relationship between the two...

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Not according to the dead child's parents, at any rate.

posted twice

shnaek said:

Not a service that a civilised society can have much regard for, though. They provide this 'service' to sell papers. Society needs to be aware of the dangers of tabloid journalism, whose aim in the main is to sell papers, to thrill or entertain - but not to tell the boring truth. Our society will not amount to much if we rely on tabloid media instead of the courts of justice to sit and judge us.

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Okay, snake, it did jar with me to give the Tabloids any credit.

I notice Catherine McGuinness has given my line - JC too obsessed with rehabilitation. She also rapped his knuckles for his behaviour.

Not according to the dead child's parents, at any rate.

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Just the reporting newspapers then. The facts of the case are few and the observations are many as can be seen throught he differing points of view of everyday people, which is why the vis should not have crossed over to the 'facts' as Mrs Holohan saw them.

MrMan said:

... the 'facts' as Mrs Holohan saw them.

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what exactly did Mrs Holohan say that was not fact?

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.