The suggestion that imprisonment is not a deterrent is wrong, argues Paul Carney, who fears softer sentencing will allow killers out to kill again
This year marks my 40th as a barrister, falling into roughly three parts, as junior counsel, senior counsel and judge. During that time, 1,626 citizens of this State have met unlawful, violent death.
Nearly all that time has been devoted to crime, though at some stage or other I have done one of everything in the shop. The only thing I really don't like being reminded about is the occasion when I was the last judge in the building and the last case in the building was a tax case.
I would like to compare how things were 40 years ago and how they are now. What I am really leading up to is to profess my profound disagreement with the writings of those who call themselves criminologists to the effect that imprisonment is a dirty word, and that having regard to the comparative crime figures in this and other countries, we have no business complaining about the levels of crime prevailing, or even being concerned about it. As well as not doing light, I also don't do bland.
I have very fond memories from 40 years ago of the letters which appeared around this time every year in the letters column of the Evening Mail from mothers complaining that the Benchers of Kings Inns were turning their children into alcoholics.
These letters were as regular as those about the first cuckoo in papers of record. What gave rise to them was that in Kings Inns the students when eating their compulsory dinners, were given a tot of McArdle's ale served from a copper jug and a choice of a half bottle of claret or port. In those days there were very large numbers of pioneers and the strategy on every night was to join a table with plenty of pioneers on it to take over their supplies of grog.
On "grand night", which was once every term, these rations were doubled and still are, and it was these nights that drove the mammies to write to the Evening Mail at this time every year. Nowadays there are fewer pioneers and perhaps the students aren't living at home anymore.
Mid-1966, when I started practising, was the time of the fair fight being prosecuted in the District Court. The District Justices of the day were very tolerant of the fair fight, encouraged the parties to shake hands and liberally applied the Probation Act which leaves the accused without a criminal record.
The fair fight still exists. It even has a name now in the criminal courts. It is called a straightener.
Nowadays when the fair fight has ended the loser is liable to go home to his kitchen drawer, take out a vegetable knife and go back to the scene and sort out his victim.
These cases will be recorded in the statistics as stabbing cases. In successive cases in Limerick however the evidence from the State Pathologist, Prof Marie Cassidy, was that the throat of the victim was slit from side to side and there was a virtual decapitation.
An examination of Frewen's great work on the Court of Criminal Appeal shows that sentences in these times were extremely moderate, running at a fraction of what would be imposed today.
There was one heavy sentencer in Cork, the celebrated Judge Neylon, who later came to Dublin as president of the Circuit Court but he was being decimated in the Court of Criminal Appeal. The chief justice of the day, Cearbhall Ó Dálaigh, was known to lend his copy of Archbold, the criminal law textbook, to prisoners in the cells. You wouldn't lend a copy of your Archbold to today's villains.
In 1972, Mr Justice Walsh of the Supreme Court delivered the most quoted judgment in sentencing. He said that objects of passing sentence are not merely to deter the particular criminal from committing a crime again, but to induce him, insofar as possible, to turn from a criminal to an honest life. Indeed, the public interest would be best served if the criminal could be induced to take the latter course.
It is the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime, but in regard to the particular criminal. Ever since, the courts have referred to sentencing the offender and not the offence.
It is also recommended that judges look at the range of penalty in a manslaughter for example, from suspended sentence to life imprisonment, pick the point on that scale where the particular crime fits and thereafter discount in respect of such factors as can be found in favour of the accused.
This approach infuriates victims who feel that everything is calibrated in favour of the killer and their interests as victims are ignored. The families in homicide cases feel that their loved ones have been air-brushed out of the case and that the criminal justice system is only concerned to find brownie points in favour of the killer. Today's heavy crime is very different from the point of view of violence and evil.
What concerns me is that the nature of the villains has changed.
In three recent cases before me, having no connection with each other, an accused person in a crowded public house without effecting any disguise assassinated somebody by firing a gun into his head at point blank range and then casually exited the premises still with no effort at concealment of his identity, making menacing or other gestures towards the spectators.
These people believed they were untouchable, but notwithstanding, two out of three were convicted of murder.
I took particular note of the expressions on their face throughout the trial. They came to court believing they were untouchable, that witnesses wouldn't swear up against them, that the judge would take any cod point that was put forward in support of an application for a direction of no case to answer, and I sought to capture the precise moment when they realised that their cases were going to go the full distance and they were liable to be convicted. For this type of person conviction is not the end of the road, because with liberal access to mobile phones and phone cards in prison they are able to continue criminality and the perpetration of violence against others.
The point I am making is that today's criminal does not fit the profile of the Victorian reformation fodder which prevailed when principles of sentencing were established.
Criminologists, according to the sound bites I hear, are constantly telling us that imprisonment is not a deterrent to crime and the only effective deterrent is the probability of apprehension.
They seem to be suggesting that substantial terms of imprisonment are something which should be rolled back from.
It seems to me that there should be a substantial reappraisal of this on the basis that today's violent criminal does not any longer fit the profile of the person carrying a sack on his back with the word "swag" emblazoned across it which existed when these rules were formulated.
My great fear is that a sentence is going to be structured so as to allow a killer to kill again, or a rapist to rape again. There are people who need to be taken out of society for our protection.
By this I am not to be taken as saying that there are not cases where restorative justice and community service may not be appropriate. These cases simply do not reach me, my starting point being the sentences appropriate to murder, manslaughter and rape.
I do not, of course, set the standards in relation to sentencing. This is done in the Court of Criminal Appeal. My present remarks are directed not at the Court of Criminal Appeal but at criminologists who seem to want us to retreat from the sanction of imprisonment. If I have misinterpreted or misrepresented the sound bites I hear from them, I apologise.
Another current preoccupation of criminolgists seems to be to tell us that having regard to international statistics we have no business complaining about the levels of crime prevailing and that having regard to various factors, including population increase, that this is actually falling.
We are, it seems to me, being regularly chastised for our fears in this area.
Mr Justice Paul Carney is a judge of the High Court. This article has been extracted from an address he gave last month to members of the Kildare Street Club