Justice system may be too drawn out - but it works

 

OPINION:Witnessing a child sex attack and experiencing the ensuing court case, four and a half years on, offers a new perspective on law in action

THIS IS a peculiar anniversary for me. One year ago an elderly man died in a Dublin hospital. The first time I encountered him was five years earlier when he was committing a serious sexual assault on a child.

In the intervening period we stood in a lift together in the Criminal Courts of Justice and sat in the same courtroom for several days. Our only exchange of words took place during the initial encounter. Thereafter I spoke about him to a judge and jury, but never addressed him directly.

Having been involved with the criminal justice system for more than 20 years as a researcher, teacher, penal reformer, and even for some time as a magistrate when I lived in Oxford, my experience in this case gave me a new perspective on law in action.

So how did it happen that a professor of criminology chanced upon a man – later revealed to be a dangerous sexual psychopath – perpetrating an awful crime, and what did I learn as a result?

First, the circumstances. One fine morning in September 2005 I was out running in a secluded location. That afternoon I was due to attend a conference in Belfast and I was pleased to be stretching my legs and clearing my mind in advance of the day’s business.

To my left, I saw a man crouched over a young girl. As I drew closer it became apparent that the child was naked from the waist down and the man was touching her intimately. I called out, both parties stood up and looked at me, and I proceeded to the only house in the vicinity – which thankfully was nearby – to raise the alarm. An arrest followed swiftly and the child, who the man knew well, was returned to her mother.

Having made my statement at the local Garda station I waited for the wheels of justice to turn. One year passed, then another, then two more. Eventually, after almost 4½ years, the scene was set for a trial.

At this point I thought that the accused person would plead guilty and avail of the discount that is applied when a victim is spared the ordeal of testifying and undergoing the stress of cross-examination. But he chose not to do so.

Without going into the process in detail it is fair to say that the judge was unfailingly courteous and the barristers were rigorous in their testing of the evidence. In addition the technology worked well with the child, at this stage a teenager, testifying over a video link from a different part of the building.

I had no doubt what I had seen and, being aware of the frailty of human memory, had taken the precaution of making an immediate written record. This proved to be of great assistance. The accused man knew his liberty was at stake and was determined to fight.

The victim wanted to put matters behind her, not wishing to elaborate on an incident that had caused so much distress so long ago.

Given that the burden of proof – beyond a reasonable doubt – is so high in a criminal case, the outcome of the proceedings was always uncertain.

Nonetheless, after due deliberation, the jury returned a verdict of guilty, whereupon the prosecution informed the court of the man’s criminal record. This included 10 years’ imprisonment for rape and attempted murder.

Had he been acquitted these facts would not have come to light.

The judge described the crime as “disgusting and revolting” and to reflect this he imposed a prison term of 7½ years.

However, on the grounds of ill-health, and following representations from the Irish Prison Service that it could not cope with his medical condition, the sentence was suspended. A form of home detention was substituted with a requirement to reside at a specified address which could only be vacated for a couple of hours each day.

Despite its lack of bite the sentence at least brought clarity. There was no longer any doubt about which version of events was true. The perpetrator, who had been on bail since the offence, could not portray himself as the victim of an unfair prosecution. The child and her family could at last try to get on with their lives.

At the same time the sentence was the catalyst for vigilantism targeted at the perpetrator. To demonstrate their abhorrence of law-breaking, local people engaged in serious criminality including threats and arson attacks.

There are several lessons to be drawn from this experience.

The first is that the system can be slow, far too slow. Not many cases take as long as this one. But if a child is involved, the pain is amplified the longer the process is elongated.

It is not entirely true to say that justice delayed is justice denied, but the unhurried nature of proceedings does say something about the system’s priorities. Surely there is scope for extending the duration of court sittings, whether by opening longer each day or for more days each year?

Secondly, I was persuaded of the importance of not revealing anything about an accused person’s prior record, if such exists. The removal of this protection is sometimes demanded by those who feel that the system is tilted too much in favour of the offender. But it is an important safeguard. A fair trial would have been almost impossible in this case if the jury had been aware of the man’s previous convictions.

Thirdly, a trial is an ordeal for everyone involved. It is almost unheard of for cases of sexual violence to be witnessed and victims are reluctant to come forward for fear of enduring further trauma. Given what we know about the high attrition rate in such cases, the argument for adequate victim support is overwhelming.

Finally, my faith in the jury system was affirmed. Lay participation is sometimes held out as an impediment to swift and certain justice and there are undeniable challenges ensuring that juries are truly representative of the citizenry. But criminal justice is administered on everyone’s behalf and wide public participation enhances its legitimacy. Strange as it might sound, some decisions are too important to leave to the experts.


Ian O’Donnell is professor of criminology at University College Dublin

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