Part of what Mr Justice Carney said was correct but part of it was just silly, argues academic lawyer Tom Cooney
Mr Justice Carney's vehement public lecture in UCC raises more questions than it answers. Why attack Mrs Holohan? Why vilify journalists and Joe Duffy? Why raise the case at all when you want to help Wayne O'Donoghue move on?
But the judge is correct. Punishment is not for revenge. The rule of law is the antithesis of a state of nature where enforcement would be irrational and biased. The moral concept of justice governs the power of our criminal courts to punish offenders. The sense of proportion that must constrain punishing justly replaces the excess inhering in vengeance or retaliation.
Mr Justice Carney says, however, that the purpose of punishment is rehabilitation, alluding to the views of Ms Justice Denham. In the Sheedy case (1999), Ms Justice Denham observed that a sentence that includes "the appropriate element of punishment (retribution and deterrence)" might also include "an element of rehabilitation".
She has never suggested that rehabilitation is the purpose of punishment.
Two principles justify punishing offenders in court. The principle of retribution, the more fundamental, justifies punishing an offender because he or she deserves it. So you punish not to satisfy an impulse for vengeance, but to give the offender his or her just deserts.
The other principle is deterrence: punishing offenders to deter them from re-offending upon their release. Preventing the offender from re-offending is the beneficial end it seeks to achieve. But it is subordinate to the principle that punishment is justified if and only if the offender deserves it. A rapist who loses his sexual desires owing to an accident must still be punished for the offence of rape.
Rehabilitating the offender is a secondary aim that in some cases may be reasonably possible. It seeks to rehabilitate offenders not just so they can rejoin society, but so that they can lead constructive lives.
Within the retributive framework, punishment must be proportionate. Appealing to the principle of proportionality, our lawmakers properly set a range of punishments for a specified category of offence. Within these constraints, judges must be free to exercise a fair sentencing discretion in order to individualise punishment in any particular case.
There must be, first, a proportion between the seriousness of the offence and the severity of the punishment. Murder is more serious than stealing a car. Therefore punishment should vary with the nature of the crime. The impact on victims is considered by the court in sentencing.
Second, the punishment must be in proportion to the culpability of the offender. Within any category of offence, different degrees of culpability attract different levels of punishment.
Intentional killing with a firearm should attract more punishment than negligent killing with a firearm, because the behaviour is more freely pursued. For the offence of possessing a firearm involving two offenders, one offender may be less blameworthy.
Judges must be able to take this into account in sentencing.
There is also the principle of economy of justified suffering. Punishment involves suffering. A humane society must be careful to enable judges to impose the least drastic punishment consistent with legitimate and effective punishment. For some offenders a severe prison sentence will be excessive because a less drastic punishment would give the offender what he or she deserved, and deter him or her from re-offending.
Mr Justice Carney worries that intense media attention to criminal trials might interfere with judicial independence. The courts do provide a vital, independent forum to judge whether a crime has been committed.
To find guilt, the court must be satisfied that the offender performed a voluntary act or omission, and had the requisite mental states, for example, intention or recklessness. The presence of these mental states shows that the offender had a fair chance to avoid the imposition of punishment.
On conviction, the judge must punish the offender according to just sentencing principles. Only independent judges can perform this role properly. But his complaint is not that the media reporting on the O'Donoghue trial contaminated his independence or the jurors' deliberations. He claims that the media and Mrs Holohan combined in some way to frustrate his ability to fix a sentence that would provide for "the reconstruction of the accused's young life".
This is a silly argument on two counts. Wayne O'Donoghue attracts opprobrium anyway for unlawfully killing Robert Holohan and then hiding and burning the child's body. And the judge has no right in a constitutional democracy to require the media to advance his sentencing aims. Indeed, the media must be free to question his aims.
Finally, the judge questions the Court of Criminal Appeal's comments on the use of victim impact statements in trials for unlawful killing. That court did stress that a statement can help the sentencing judge in deciding on the sentence, and give the family or friends of a dead victim a chance to express their loss.
The court said a copy of the victim impact statement must be given to the sentencing judge and to the accused's lawyers and that the sentencing judge should warn the person who makes the statement that departing in any material way from the statement as submitted may be contempt of court.
Mr Justice Carney thinks that the guidelines could give killers a "right of censorship" over their victims, and make the victim feel victimised once again. This is an overheated criticism. It is not unreasonable for a convicted person to object to false allegations in a victim impact statement. And the procedure will not impair the ability of victims to get the truth of their loss across.
He might have assessed the Court of Criminal Appeal's view that if a statement makes unfounded or scurrilous allegations against an accused, the sentencing judge may take this into account to mitigate the sentence. How does that serve justice?
Tom Cooney teaches law at UCD school of law