Judges no longer immune to glare of public scrutiny

Analysis:Mr Justice Paul Carney's decision to revoke bail for a convicted sex offender yesterday was not all that unusual – but the tone of his apology in court was certainly unprecedented.

“The procedure I adopted was not appropriate. It was insensitive. I have absolutely no doubt or hesitation or difficulty in saying that,” he said in the Central Criminal Court. “I have no hesitation in expressing my profound regret to Ms Doyle for the distress which has been caused to her in this case.”

His intervention followed a tsunami of vitriol over the decision. Social media, newspapers and even the Taoiseach spluttered with criticism of the decision or – more cautiously, in the case of Enda Kenny – concern that victims of rape might lose the courage to seek justice in the courts.

Judge Carney, needless to say, did not mention public revulsion as a contributing factor in his about-turn. He said it was down to a “procedurally confused” method of dealing with the case. But even within the cloistered confines of judicial chambers there has been no escaping the din of criticism.

It might be reading too much into the tone of the apology to suggest judges are suddenly much more mindful of what way the wind of public opinion is blowing. (Mr Justice Carney, after all, has never shied away from unpopular or attention-grabbing decisions.)

But what seems increasingly clear is that members of the judiciary feel increasingly insecure and vulnerable to the harsh glare of public scrutiny.

How else to account for the establishment of the Association of Judges of Ireland, the first ever representative body for members of the judiciary?

Judges, too, have had their pay cut for the first time in the history of the State by the Government, supported via a referendum that had the backing of the vast majority of citizens. The Minister for Justice has also reportedly clashed with members of the judiciary in private, seeking longer sitting days and greater efficiencies.

Like other traditional pillars of society, they are adjusting to a world of robust – and often bruising – public accountability over how they perform their roles and how they are perceived by the public.

Once distant and dispassionate dispensers of justice, judges all of a sudden seem more human than they ever did.

For the most part, the horse-hair wigs and elitist trappings are gone. They are increasingly treated in the same manner as other well-paid members of the public sector. Their pay and conditions resemble senior public servants (though their State pensions grow at up to three times the rate of public servants because their service is shorter).

At a time of austerity, it is hardly a surprise that they should be subject to the same kind of forensic scrutiny of how much they are paid.

Some judges have also proven all too human. Legal history was made in the Criminal Courts of Justice last year when the first member of the judiciary who was convicted of a serious crime resigned and was sent to prison. Heather Perrin was jailed for 2½ years for inducing a client by deception to leave half his estate to her two children when she was working as his solicitor.

It is not that long ago since an impeachment process was initiated against former Circuit Court judge Brian Curtin, but was not completed after he resigned from his position. Criminal charges against him, related to the possession of child pornography, were dropped after it emerged that evidence was gathered using an out-of-date warrant. It is a reminder that judges are not remote beings who live life on a pedestal.

Some among the more senior ranks of the judiciary feel there are real risks that the judges have become too susceptible to the public mood. It is a subject the late Seán O’Leary, a High Court judge, commented on a few years ago in a posthumous broadside.

He said judges associated too much with what he called a “populist media consensus” and said it was vital there was a greater spirit of independence among members of the judiciary.

Greater sensitivity to the public mood may be framed negatively by some. But the requirements that judges work in public and give reasons for their decisions provides the best means of accountability.

Their decisions can be reviewed or appealed. These are the primary means by which judges are held accountable for their decisions.

It is hardly a new development that judges’ decisions are the subject of public comment and criticism. They have always been – and will continue to be – unpopular with government and the public on occasion.

What is new is the volume of criticism, which is harder to escape than ever before. Social media and a more assertive press are responsible for that.

John Paul Frank, the US lawyer and law professor, once wrote that elevation to the bench emancipated man from many of the pressures of the real world.

“That great corrupter of the conscience, the local constituency, is gone, and a man appointed need only consult the law, his conscience and his aspirations for his country.”

They are noble sentiments, but far removed from the reality of everyday life. In the real world, judges are acutely aware of how they are seen and how their judgments are received, now more than ever. This can be a good thing. There are real risks to the rule of law if it is seen by the public as remote, inaccessible and divorced from everyday life.

Judges occupy a privileged position: it brings a large salary, generous pension, along with real respect. But it now comes with greater public scrutiny than ever before.

* Carl O’Brien is chief reporter on The Irish Times