THE FAMILY of Christy Cawley, killed in front of some of his children, must now go through the ordeal of a second trial of those accused of killing him, following the setting aside of the conviction of Warren and Jeffrey Dumbrell on Monday. The Court of Criminal Appeal ordered a retrial when it found that remarks made by the presiding judge, Mr Justice Paul Carney, at a lecture he gave in University College Cork (UCC) during the trial, could give rise to the possibility of the jury being biased against the accused.
Its ruling raises the issue of judicial comment on matters relating to criminal justice which Mr Justice Paul Carney is most qualified to make. He was appointed to the High Court almost 20 years ago and for most of that time has sat in the Central Criminal Court, where he is the most senior judge. However, his comments have not been uncontroversial. Four years before his speech in UCC the then chief justice, Mr Justice Ronan Keane, objected to remarks Mr Justice Carney was preparing to make to a conference in Dublin, and which he had circulated to the media.
Three specific objections were made by the then Chief Justice: that the matters referred to were in the recent past or still current; they could come before the courts in another form, through appeal; and judges should not talk in public about cases over which they had presided.
The chief justice did not say that judges should not be involved at all in public debate over legal and social issues in general and criminal justice matters in particular. Indeed, Mr Justice Keane himself raised the issue of abolishing the mandatory life sentence for murder, a view echoed by the then president of the High Court, Mr Justice Finnegan. Other judges have written and spoken about issues like the appropriate sentences for various crimes; evidence; problems in prosecuting sexual offences and a host of other matters.
Judges are best placed to see how the law works in practice and their input into public debate about the development of our criminal justice system is a vital resource for informed decision-making. However, at present no vehicle exists for any such input, except ad hoc interventions at conferences or through academic journals.
The Government has undertaken to legislate this year for the long-awaited judicial council. One of the tasks the new body could set itself could be the regulation of how and in what circumstances judges express their views on legal issues of public interest.