At the root of the defects in the criminal justice system which gave rise to the Sheedy episode lies the fact that sentencing is very much the Cinderella of the legal system. To understand why this is so, one has to go back two or three centuries to the time when there was only a single punishment - the death penalty - for more serious crimes. Those were the days when, as was truly said, one could as well be hung for a lamb as for a sheep.
Thus, in the period when the shape of the legal system was being outlined, sentencing was very much an afterthought. Various consequences flowed from this, which have remained with us more or less to the present day. Thus the usual rules of evidence do not apply when a court is considering sentence, the relevant circumstances being largely rehearsed by counsel for the defence and not subject to cross-examination: "The accused is a person of good character and deeds."
Again, it was only very recently that there could be an appeal against a too lenient sentence. Worst of all, it was only in the last 15 or so years that substantive law as to sentencing began to be established. The conventional reason given for this was that so many different factors were involved. And the trade-off between them was so multi-layered that it was impossible to build up a system of rules. Hence almost everything should be left to the discretion of the trial judge, leaving little scope to an appeal court and allowing huge authority to the trial judge and inevitably a lot of room for inconsistency.
There is something in the argument that a lot of factors are involved in sentencing, but this can be taken too far. Contrast the sentence originally given in the Sheedy case (four years with a review after two years) with that awarded in a 1998 case in which a garda killed a young man and seriously injured his father. The accused pleaded guilty to charges of drunken driving and failing to stop after an accident. He received no prison sentence.
It may have been a feeling of revulsion against this sort of inconsistency which led the judges in the Sheedy episode into the course of actions which culminated in their resignations. Plainly we ought to have sufficient law on sentencing to prevent such blots on our system of justice.
Moreover, by now, there is a myriad of factors which have to be taken into account in determining sentence, including: retribution, deterrence, both of the culprits and others; as well as rehabilitation. And the particular kaleidoscope of facts in a case has to be matched against a wide range of different sanctions in order to see which is appropriate.
And, in the case of a prison sentence later on, it may be necessary to include in the equation such issues as: conduct in prison, health, and now also the pressure on prison places which costs the public more than a hospital bed.
In response to this sort of analysis, the principal recommendation of last week's Department of Justice report was to establish, on a statutory basis, a Parole Board whose main task would be to review prison sentences after some time had been served. Considering that the inspiration for this report lay in the errors of two judges, it is ironic that there may be constitutional dangers in establishing the board, which have arisen because of the zeal of the judges in staking out their position under the separation of powers doctrine.
This doctrine is based on the notion that each organ of state has its own particular function in respect of which it is independent of the other organs. At its widest, this doctrine goes beyond being a synonym for the independence of the judiciary.
However, as interpreted by the judges it has been given a very courto-centric view. Thus very little has been heard of the idea that the courts should pull in their horns (as the US courts do) in areas of high political controversy where there is little solid law to guide the judges, for instance: foreign affairs, Articles 2 and 3 or referendums.
Instead, what is being made of the doctrine is that we should have a strong and independent judiciary with a strongly guarded monopoly over "the judicial function". It is the last point which is relevant in connection with the proposed Parole Board. It has not been indicated whether non-judges will be members of the board. Given the need to take into account how a prisoner is behaving and what progress he/she is making towards rehabilitation, it would obviously be useful to include certain non-judges as members, including specialists in such fields as psychology, re-training or prison discipline. However, the separation of powers may pose a threat to this. As a baseline, one ought to note that it is well established that sentencing is part of the judicial function and consequently must be vested in a court.
Starting from this baseline, the crucial question is at what point the length of custody of prisoners crosses the line, ceasing to be a decision which has to be vested in a court and becomes part of the Executive's general function of caring for society, including its less successful members.
On this point, there are conflicting authorities. But probably the strongest is that of Woods (1969 but confirmed in 1986). Here the trial judge had sentenced the prisoner for a maximum of seven years' imprisonment and a minimum of three years, leaving it to the prison authorities to determine which period he should serve, according to whether he had followed prison discipline. The High Court ruled the sentence unconstitutional on the basis that "the selection of the penalty to be imposed cannot be committed to any person not being a judge or court." This decision seems to be based on the unspoken assumption that the judiciary is the only organ of government which can be trusted to adjust a sentence passed in open court. As a result, there is a danger that such an apparently innocuous step as a Parole Board would require a constitutional amendment.
The second way in which the legal system has failed to develop to accommodate the importance of sentencing is in the field of plea bargaining. The reason for this practice is fairly obvious: if all accused persons insisted on a full jury trial, with the attendant delay and expense, in all the cases in which they were entitled to it, the system would break down.
One safety valve which may be available is plea bargaining. What happens is that in a finely-balanced case, before the case comes to court the prosecutor offers a more lenient sentence (maybe by up to a third off) or suggests altering the charge to a less serious one. Examples might be manslaughter instead of murder or careless instead of dangerous driving.
In the case of the more lenient sentence, the judge may have to be made aware of the outcome of the deal. Otherwise, the criminal might be afraid that he might plead guilty and still receive a full sentence. This practice may or may not have been an aspect of the Sheedy episode. Judge Matthews said that the reason which Judge Kelly gave him for withdrawing from the original sentencing of Sheedy was that Judge Kelly had got "too close to the case".
Judge Kelly denies saying this.
There is certainly not anything peculiarly Irish about plea bargaining. Nor is there anything necessarily wrong with the practice.
On the one hand, it gets close to violating the constitutional precept that a judge should not have any involvement with a case save in open court, since justice must be done in public. On the other hand, without plea bargaining and practices like it, an appalling vista opens up, namely the breakdown of the system.
Yet plea bargaining carries an obvious risk of inconsistency, unfairness and public suspicion. To cater for it, the first essential is to acknowledge that it occurs and then to design carefully a system to accommodate it.
The sixth report of the Denham Group on the Courts Commission recommended that, as with many professional or trade groups, there should be a non-statutory, self-regulatory body for the disciplining of judges. A non-statutory system, with the merits of flexibility, may be a good idea. But please not self-regulation. There is no case, in the modern world, for leaving the disciplining of judges in the hands of judges and lawyers.
The courts and the legal system are crucial just because law is at the basis of ordered, civilised behaviour in all areas of life. They are just too important to be left to judges. Such a system might well be worse, if for a different reason, than the Oireachtas resolution scheme.
If, as I think, the balance of advantage is against making the court system accountable to the general public, this concession to the complexity of the law ought to be balanced by a heavy involvement of lay people in the disciplinary system. They would be more detached in their attitude to judging the judges and better able to identify with those citizens who enter a court room only once or twice in their lives.
Roman law gave us the notion of "no one may be a judge in their own cause". Less well known is the version of Zambian customary law: "One does not invite a monkey to decide an affair of the forest." In any case, the idea is universal and universally valid.
David Gwynn Morgan is professor of law at UCC
