Judges, Michael McDowell and mandatory sentencing

Michael McDowell's robust criticism of judges is healthy and as an art-form should be welcomed. There is nothing inappropriate with a politician, even a Minister for Justice, criticising judges, even when, as in this instance, he is wrong. He is entitled to have a “go” at judges and there is nothing in what is known as the “separation of powers” which should in any way inhibit him. Michael McDowell is as entitled to criticise judges as the rest of us and the forthright manner in which he has done this is refreshing.

An issue on which the recent controversy has arisen has been in relation to the Criminal Justice Act 1999 which, provides for the imposition of a minimum mandatory sentence on conviction for possession of drugs for the purpose or sale to the value of €12,700 or more of 10 years imprisonment. But the Act goes on to state that this mandatory minimum sentence shall not apply “where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances”.

In the event the courts have regularly refused to impose the minimum mandatory sentence, availing of the “exceptional and specific circumstances relating to the offence” clause. In the main, in exercising this discretion, the judges have taken into account specific and exceptional circumstances in particular cases, such as the minor role played by an accused in a particular drug transaction.

And this is what has made Michael McDowell unhappy: that in so exercising their discretion the courts have gone beyond the “exceptional”.

But in a speech delivered on “Sentencing in Ireland" on 28 February 2004, Michael McDowell betrayed an anxiety about mandatory sentencing. He referred to the presumed constitutionality of the 1999 Act until set aside by the Supreme Court – why would he raise this at all if he didn't think this was relevant? He said: “While mandatory sentencing gives a very clear signal as to the abhorrence with which we, as society, view certain criminal acts, I believe that such approaches must be exceptional and I would not advocate a more liberal use of statutory minimum sentences. I believe only the Courts are in the position to see just what is the proper sentence. They alone can take all the circumstances in a particular case into account and seek to ensure that the scales of justice are being properly balanced.”

If he believes that “only” the courts are in a position to see just what the proper sentence is in a particular case, why is he so annoyed that the courts do just that: determine what the proper sentence is in particular cases?

He went on to acknowledge that in a report of a working group chaired by a Supreme Court judge, Niall Fennelly, it was noted that sentencing guidelines run the risk of interfering with the judicial discretion of judges. In other words run the risk of being unconstitutional. He said he would generally concur with this reasoning.

So what is he on about now?

And on the issue of bail, he has distorted the significance of the 1996 constitutional amendment on bail. That merely allowed judges to take into account the likelihood of an accused person committing crimes while on bail, in deciding on whether to grant bail. It did not require judges to refuse bail to those gardaí said were likely to commit further crimes.

Michael McDowell knows that the recent crime panic is just that and he knows that reflexive legislative responses to all such panics are likely improperly to erode civil liberties and/or to prove merely cosmetic.

It's a pity he has not the political courage to argue unpopular causes.