Judge John Neilan's plans to jail drink-drivers should have been left to the courts to sort out, argues Carol Coulter, Legal Affairs Correspondent.
Many will share Judge John Neilan's frustration at the persistence of the problem of drink-driving, which can only get worse in the period leading up to Christmas. A period off the road does not appear to be a deterrent. Two weeks ago, therefore, the judge announced he would jail all those convicted for at least a week, while considering the sentence.
But it was quickly pointed out that such a course would run into constitutional difficulties. Legal experts contacted at the time by The Irish Times pointed out that there was a constitutional entitlement to bail, which could only be withheld for specific reasons provided for under the Constitution.
Article 40.4.6 states: "Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person." A person not actually sentenced by the judge, but sent to jail on remand for a period, could make a habeas corpus application to the High Court, which is provided for in the Constitution. His lawyers would probably argue that he was not charged with a serious offence, and, further, that there was no evidence he was going to commit a serious crime. It is difficult to see how this decision to jail him would be upheld.
If that happened, it would spell the end of Judge Neilan's experiment with this particular form of deterrence.
However, this did not happen. Instead the Minister for Justice intervened in the debate, stating that what was proposed was unconstitutional, Judge Neilan announced he was applying a self-imposed moratorium on hearing drink-driving cases, accusing the Minister of seeking to "intimidate and humiliate" his court.
Mr McDowell had prefaced his remarks by stating that it was up to the judge to run his court any way he wished, thereby acknowledging the constitutional independence of the judiciary. Article 35.2 is clear: "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." However, he then went on to demolish legally the basis of the judge's decision.
When Judge Neilan described this as "direct interference of a member of the executive in the judicial process", Mr McDowell responded yesterday by saying that he was expressing his opinion as a citizen. However, he also said on Thursday, in the wake of the judge's comments, that he had consulted the Attorney General, who supported his view.
The Minister does have the same right to freedom of speech as any other citizen, including the freedom to criticise a judicial decision.
But his access to media is not the same as that of other citizens. Nor is his access to the opinion of the Attorney General, the most senior lawyer in the State.
Mr McDowell is a lawyer, a former attorney general and, in his legal career, seen as one of the leading senior counsel in the Law Library. As such he would rarely have darkened the door of a District Court, and when he did, his words would have been listened to with care, even reverence, by most District Judges. His very presence would have commanded respect.
He is now Minister for Justice. It is not necessary to be a lawyer to be a minister for justice, though it probably helps. However, if a lawyer is minister for justice, it is wise for him to restrict his legal opinions to matters that have a direct bearing on the work of his Department. Legal opinions coming from a minister are at the least open to the interpretation that they could amount to interference in the judicial process.
Mechanisms exist for the correction of wrong judicial decisions, especially when they are taken at District Court level. These mechanisms should have been allowed to operate on this occasion. Unfortunately, no mechanisms exist for the regulation of the behaviour of judges which falls outside the appeal process, as has been all too painfully illustrated by the Judge Curtin affair. Now that really deserved the urgent attention of a minister who was also a leading counsel.