When the Evening Herald last week defied Wayne O'Donoghue to "go ahead and sue" over allegations that his killing of Robert Holohan may have been sex-related, it was really challenging the legal system, writes John Waters
Here we are, in the wake of one of the most sensational and harrowing murder trials in the history of the State, unable to say what happened.
There has been much flannel following last week's sentencing to the effect that the trial judge, the DPP, the Garda Síochána and various others behaved with impeccable professionalism, scrupulous fairness and so forth, but the fact remains that nobody now can declare themselves satisfied with the outcome.
The Holohan family are deeply dissatisfied at the withholding of evidence of a sexual nature from the jury and what they see as a lenient sentence. Wayne O'Donoghue is unhappy also, for, having been convicted in a court of law on the lesser charge of manslaughter, he now finds himself convicted in the court of public opinion on a charge of murder with a sexual motivation, among the most damning indictments imaginable.
Two things have happened here that have not happened in quite the same way before: (1) The legal system has failed to meet its own requirement that justice be done and seen to be done; and (2) the media have stepped in to provide an alternative system of what can only loosely be called justice.
There is much to be said in praise of media coverage of the sentencing, the victim impact statement of Robert Holohan's mother, and the detail of the evidence which was not put to the jury.
The grief of the family which have lost their cherished son is a vital part of the story, and it is right that it has been given a platform. It must also be seen as proper that Majella Holohan was able to place on the public record details of evidence which suggest an entirely different version of the events leading to the death of her son.
But there are also questions to be asked about the propriety of media organisations sheltering behind the grieving family in order to peddle a salacious story, sometimes in a quite malevolent manner, and often without regard for fairness and balance.
As things stand, Wayne O'Donoghue has not been tried for any form of sexually motivated crime. Some will hold that this makes him a lucky man, who has been treated far more leniently than he deserves.
But it also renders him incapable of defending himself against charges which have emerged in the wake of his trial. Justice is a two-way street, and, much though one sympathises with the Holohan family, it needs to be said that the requirements of justice should not be exclusively concerned with their perspective.
Just as the Holohan family were entitled to expect that the system would use its best endeavours to prosecute the man accused of murdering their son, Wayne O'Donoghue deserved the opportunity of meeting any charges that might have been levelled against him. Since O'Donoghue has had no opportunity of facing the charges of which he is now in effect convicted by public opinion, the injustice towards him must be seen as matching that suffered by the family of his victim.
When the Evening Herald challenged O'Donoghue to sue, it was in effect telling him that no court could trump the power of public opinion.
There is some truth in this, moreover, which means that O'Donoghue has now received a life sentence, to be forever known as "the paedophile who killed Robert Holohan".
Not long ago, these events would have been inconceivable. There have been many notorious cases in even the recent history of Irish jurisprudence, where the outcome of criminal trials had the potential to be deeply controversial.
Plea bargains and other forms of deals between prosecution and defence have not infrequently led to long-awaited trials being foreshortened dramatically by virtue of a "guilty" plea in return for, perhaps, the dropping or reduction of other charges.
Until recently, the media tended reluctantly to go along with this kind of thing, mainly for fear of the laws on contempt. It was hitherto inconceivable that the media would be able to conduct what in effect has been a trial after the fact.
What has changed is that a new generation of media, pursuing the emotional content of events at least as much as the facts, has shifted the balance of power from the legal system on to the media themselves and on to public opinion. The introduction of victim impact statements, incongruous in the context of the archaic system we maintain, has fuelled these trends.
In some ways these are welcome developments, because the legal system has long been far too unaccountable, inscrutable and big for its wigs. But we would be foolish not to realise that the new court is far, far less accountable than the old.