National Prosecutors' Conference: A recent judgment of the Court of Criminal Appeal has made if very difficult to appeal against leniency of sentence, according to the Director of Public Prosecutions.
Mr James Hamilton was speaking at the opening of the fourth annual National Prosecutors' Conference in Dublin on Saturday. He questioned a recent judgment of the Court of Criminal Appeal where he had appealed against the leniency of the sentence handed down to Kevin Keegan.
Keegan, who had a lengthy criminal record and was already serving a sentence, was given a suspended sentence for robbing a shop with a hammer, and the Court of Criminal Appeal dismissed the DPP's appeal against leniency of sentence.
"We have now reached the remarkable position that the Court of Criminal Appeal can acknowledge that a sentence is 'very lenient indeed', and even 'remarkably lenient', but it is nevertheless not found by them to be 'unduly lenient'.
"If this is what the legislature intended in 1993 [when the legislation allowing the DPP to appeal against leniency of sentence was passed] then so be it, but if not then the case for further legislative intervention would seem to be strong indeed.
"In effect, the Court of Criminal Appeal seems to be saying that, provided a trial judge lists all the aggravating factors which he has taken into account, and lists all the mitigating factors which persuade him towards leniency, then no matter what sentence is actually imposed that sentence cannot be unduly lenient because no error of principle can be identified," Mr Hamilton said.
"I am tempted to add that if no error of principle can be identified it is primarily because, with a very small number of exceptions, the appellate courts have been reluctant to identify principles which could lead a trial judge to identify any particular sentence as appropriate."
Mr Hamilton said in criminal trials much more could be decided at a pre-trial hearing. This included applications to prevent trials going ahead.
"Under our present arrangements it is not uncommon for juries to be sworn and then sent off to the jury room to sit for hours and sometimes days while legal argument takes place in their absence," he said, adding this could be avoided if issues could be decided before the jury was sworn.
He questioned the practice whereby the prosecution does not contest evidence given in mitigation. "It is not clear to me why our trial system, which is adversarial up until the point of conviction, should then enter a phase where it seems, by some at any rate, to be regarded as unsporting to challenge or contradict assertions made by the defence, no matter how unproven or lacking in reality they may be."