The most senior judge in the criminal courts, Mr Justice Paul Carney, yesterday called for more judges with experience in criminal cases to serve on the Court of Criminal Appeal, writes Barry Rochein Cork
Mr Justice Carney, who was speaking at a law conference organised by the Centre for Criminal Justice and Human Rights at the faculty of law at University College Cork, also renewed his criticisms of the office of the Director of Public Prosecutions (DPP) on the question of sentencing.
On the make-up of the appeal court, he said: "Some trial judges might be more happy if there was greater involvement on the Court of Criminal Appeal of people with trial experience and less visitations by people on a short-term basis from the law of patents, the commercial court and chancery and matters of that kind."
The judge elaborated on his complaints about the DPP, James Hamilton, for failing to indicate appropriate sentences for homicide and rape cases in the Central Criminal Court.
Mr Justice Carney said he disagreed with the DPP's policy of not advising trial judges on what he believes is an appropriate sentence for a crime upon conviction but then later appealing the sentence to the Court of Criminal Appeal if he believes it is too lenient.
"My attitude for a very long time has been that the director comes into me and says 'whatever you're having yourself' and I do what I think is right, and he then, in an enormous number of cases, brings appeals behind my back.
"My difficulty trying to deal with the position taken by the Director of Public Prosecutions is that he then feels free to go and criticise the judge behind his back in the Court of Criminal Appeal having refused to take a position before the trial judge's face.
"Needless to say, he would not have any regard for anything that might have happened on Joe Duffy or in the tabloid press in the meantime, or any representation he obtained from victims' organisations."
He also said he would have welcomed some guidance from the DPP recently when he found himself having to impose the first ever sentence in Ireland for a conviction for manslaughter with diminished responsibility.
"I would have expected some assistance and guidance from the prosecution in relation to what the approach ought to be in a conviction of that nature.
"Again, counsel came in and adopted a 'whatever you're having yourself approach', and I had to force the director to take a position."
Mr Justice Carney said: "A University of Limerick study found the Court of Criminal Appeal intervened in 48 per cent of cases. I don't believe trial judges are getting things that wrong, but I think if we had a greater involvement of people with backgrounds as trial judges you wouldn't get that sort of figure."
He also argued for the use of videotaping of statements of witnesses as soon as possible after a crime is committed if gardaí suspect that the witness may be intimidated into not testifying.
He instanced the case of a witness to a murder in a pub in Tallaght who was videotaped giving a statement to gardaí on the night of the killing and later returned to make a formalised statement.