Judging independence

It hasn’t been a great week for the judiciary.

On Monday, 51 year old Anthony Lyons was sentenced to six years for a violent sexual assault on a young woman who was walking home from a family function.

So far so normal.

However, Lyons’s sentence was suspended for all but six months, and Judge Desmond Hogan ordered him to pay €75,000 in compensation to his victim.

As if money could buy peace of mind but what it does seem to buy you is a shorter sentence.

Justice Hogan did say in his judgment that the compensation was not intended in lieu of time served in prison, but it’s hard to see his logic. He referred to the defendant as being of good character, previously, and said he was unlikely to reoffend. It’s a matter of opinion whether a young junkie with no previous convictions would have received the same sentence.

Sentencing can be appealed by the DPP to a higher court, and that's a strong possibility in this case. 

In an entirely separate case reported by the Mayo News, a judge in Mayo District Court, asked about recommending a Polish charity to which a defendant could donate after racially abusing a bouncer, said “there is [a Polish charity], it’s called social welfare”. She further added that she had a problem recommending a Polish charity and would prefer a local charity to benefit. 

Irish judges are appointed by the Government, from a list presented by the Judicial Appointments Advisory Board which consists of the Chief Justice, the Presidents of the High, Circuit and District Courts, the Attorney General, a barrister, a solicitor and three (or fewer) appointments of the Minister for Justice.

The JAAB considers only basic criteria such as a degree of competence in legal practice, probity, suitability on grounds of character and temperament, that the person is “otherwise suitable”, and tax compliance.

There is no examination and no interview. After the board puts people forward, the Government appoints them. There is no transparency.

When in Government, Fianna Fáil took great relish in providing jobs for the boys (and a few girls, too). Fine Gael and Labour are proving no less accomplished at this worthy task, and the appointment of six judges last November included five with clear links to Government parties.

Like all of us, judges bring their preferences and prejudices to work.

I’m not for a moment suggesting that either of the judges mentioned above has any lack of competence in law or anything less than honourable intentions, but we all have our baggage.

With all the Government's talk of the constitutional convention that will revolutionise Irish society, little has been said about some of the major things that are wrong with our system. Mainly the things that keep the Government firmly in charge. 

The concept of separation of powers – independence of legislature, executive and judiciary from one another – has been twisted beyond recognition here. The Government (executive) keeps the legislature (Dáil and Seanad) under the whip, and appoints the judges (judiciary). Not much independence evident there at all.

In June, Chief Justice Susan Denham endorsed a declaration by the European Network of Councils for the Judiciary which said judicial appointments should be made by bodies totally independent of governments and the political system.

Perhaps a proper, accountable, independent and meritorious system of appointing judges could find its way on to the list for the Constitutional Convention?