Towards the end of his address to the UCC Law Society last week Mr Justice Paul Carney shied away from the logic of his argument. Having implicitly set out a plausible case against victim impact statements, he appeared to shrink from the ineluctable conclusion, writes John Waters.
He had "grave reservations", he said, about following the guidelines advanced by Macken J. in her judgment in the unsuccessful appeal by the DPP against his (Carney J's) sentence in the Holohan murder case, including the proposal that the misuse of a victim impact statement to make "unfounded or scurrilous" allegations against an accused be taken into account by the judge in mitigation of the sentence to be imposed.
He stressed that he was not proposing a legislative response. Nor did he hold that victims should be cautioned in advance about departing from submitted statements.
What, then? The courts, he said, will, "if necessary", deal firmly with a victim who "wilfully" abuses the victim impact procedure, and will also "face down any venom directed at them by the tabloid press". But this was not to say, he hurriedly emphasised, that compassion should not be exercised "where appropriate, as for example in the case of a victim who was clearly motivated by obsessive grief as distinct from malice".
But all victims of crime provoke compassion. Most victims are also, in some sense, grief-stricken. It would take a brave judge to separate the elements of a victim's statements motivated by grief from those motivated by malice.
The issues raised by the Holohan case, therefore, remain. What occurred at and after the sentencing in that case was unprecedented. With the trial concluded, Majella Holohan's victim impact statement caused, in effect, a new trial to be commenced in the court of public opinion, with a new charge based on previously unheard and untested evidence. This misuse of a victim impact statement was jumped upon by interests with more cynical motives. Hiding behind victim grief, media were able not merely to report the new allegations, but to engage in an orgy of emoting, ostensibly on the family's behalf, turning the media into the highest court in the land.
The Holohan family arguably had an entitlement to take any opportunity to put its point of view on the public record. For the judge to silence Majella Holohan would have been unconscionable. Equally, it would have been outrageous, not to say impossible, to seek to prevent the media reporting what she said.
Mr Justice Carney sketched a complex culture of interaction between victim grief and media opportunism. The "tabloids", he said, had stirred up such hatred for the accused, Wayne O'Donoghue, that he can have no future in this country when his time is served.
It was not acceptable that the sentencing objective of a court should be frustrated by "an unwilling coalition between the victim and the tabloid press". But why does he believe the coalition was "unwilling"? And is it really accurate to see the problem as confined to the tabloid press? More importantly, what can be done?
Mr Justice Carney, understandably anxious to go easy on Majella Holohan, continued: "Nobody would have wished to add to the grief of the victims, but they were given an iconic status by the media, in particular by the tabloids, which would have made it all but impossible for the victim to be held to account. The victim was acting under the influence of obsessive grief. The tabloid press do not have this excuse."
True, but how, realistically, can media be indicted for ventilating something said in open court? Our system of justice places great emphasis on detachment and dispassion. But how real can this be when a case attracts comprehensive media coverage? Judges are not merely human, but also wish to be seen to be human. Indeed, Mr Justice Carney was at pains to emphasise that he has found himself as a judge "affected by the oral evidence of the victim, often highly dramatic, of the effects the crime has had on her and continues to have".
This seems right and good. But where does he suggest the line be drawn beyond which the writ of victim emotion should not run? The issue is that a new generation of media, as interested in emotional content as in facts, has shifted the balance of power from the legal system on to media-regulated public opinion. Victim impact statements have fuelled this trend, bringing an unpredictable element into what should be a calibrated, objective process.
Having outlined the problem, the judge sidestepped his own logic. Perhaps being, as much as anyone, subject to the rule of the culture he sought to make visible, he shrank from total exposition or clear-cut solution. For the logical conclusion is that, in a media culture in which victim emotion can so readily be hijacked, the only solution is to abolish the mechanism by which, under court privilege, such emotion may be expressed in such a manner as to, in effect, pervert the course of justice.