ANALYSIS:Does the Court of Criminal Appeal impede the imposition of deterrent sentences?
IN RECENT weeks two High Court judges have implicitly criticised the Court of Criminal Appeal, suggesting they were inhibited from imposing the sentences they thought appropriate by its jurisprudence.
Sentencing amateur boxing coach Frank Mulligan last month to eight years in jail, with two years suspended, for raping a teenage trainee boxer, Mr Justice Paul Carney said he was sure Mulligan would reoffend if he got the opportunity, but added he could not take that into account when sentencing because it would be overturned by the Court of Criminal Appeal.
Also in the Central Criminal Court last month, Mr Justice Barry White said he thought a 14-year sentence was the appropriate one to impose on Martin Toland who was found guilty of the manslaughter of Alan Nolan at his apartment in Cedar Brook Walk, Ballyfermot, Dublin, in September 2007. Toland had stabbed his victim.
However, he imposed a nine-year sentence, commenting: “Fortunately for you . . . I’m constrained by the Court of Criminal Appeal from imposing such a [14-year] sentence.” The mother of Mr Nolan expressed her dismay after the trial.
“Fatal stabbings ought to attract lengthy sentences,” the judge said, adding that certain elements in society resorted to knives to resolve differences and had little or no respect for human life.
Previously Mr Justice White had imposed sentences of 20 years and 14 years for manslaughter, explaining that his sentences were aimed at deterring others. However, the Court of Criminal Appeal said he had erred in principle in both cases and reduced the sentences to eight years.
Mr Justice White and Mr Justice Carney share the view that killings involving knives should attract deterrent sentences. The latter has previously commented on the rulings of the Court of Criminal Appeal on this and other issues, remarking at a speech to UCC in June 2008: “It is more and more the case that appellate judges have never had the responsibility of conducting a criminal trial themselves.”
While there are not many judges who express such criticisms in public, it is widely acknowledged that there is a problem with the structure of the Court of Criminal Appeal. It is an ad hoc court, made up of two judges of the High Court and presided over by one of the eight judges of the Supreme Court. This means that it has no permanent membership.
“It is absurd to have an appellate court with an ad hoc selection of three judges,” former director of public prosecutions, James Hamilton, told The Irish Times. “You won’t get a coherent jurisprudence, which is not a criticism of the individuals involved.
“An appellate court has two functions: to do justice in the individual case and to lay out general principles. It generally does a good job on the first. But with regard to the second sometimes the judgments are ex tempore and not carefully considered.
“You need a permanent court with a cohort of about six judges that regularly hear criminal cases.”
This point is echoed in a report of the working group on a Court of Appeal, chaired by Mrs Justice Susan Denham, now the Chief Justice, and published in May 2009, which argued for an intermediate court of civil appeal between the High Court and the Supreme Court, leaving the Supreme Court to deal with cases that primarily involved constitutional issues.
That report examined the Court of Criminal Appeal and was generally positive about its work, but commented: “A new court of appeal with a permanent cadre of judges would lead to a more cohesive development of criminal law jurisprudence with reserved judgments in the longer term. A dedicated panel of judges would approach criminal law issues with the specialist experience which prolonged exposure to this area would allow.”
Mr Hamilton said that over the past 15 years the court had gone some way towards laying down sentencing principles, and pointed out that some High Court and Supreme Court judges had delivered lengthy and thoughtful judgments outlining what should be guiding principles.
It should also be acknowledged that the Court of Criminal Appeal regularly increases sentences where the DPP appeals them on the grounds of leniency. For example, in a case of robbery where the victim was slashed with a knife the sentence was increased from four to six years by the Court of Criminal Appeal, and the court noted that the Probation Service had said the accused presented a high risk of reoffending, so this consideration may be taken into account.
Mr Hamilton added that the legislature could also address the problem of knife crime by laying down aggravating factors to be taken into account when sentencing, like the possession of a knife.
“I think judges should do what they think is right in principle unless there is a very clear line of jurisprudence to the contrary,” he said.