It is our democractic duty to robustly scrutinise judiciary

THE collapse of three very serious criminal trials in less than a fortnight as a direct result of media commentary, must not be allowed to smother public debate on the fine points, or the generalities, of our criminal justice system. When judges decide to stop trials where people are facing allegations of rape and murder, it’s time to pay attention.

But that does not mean we stop talking. The opposite, in fact, should be the case.

We haven’t done enough talking in this country about how crime and justice is managed.

We haven’t debated sufficiently a sentencing policy which for many is disjointed and bordering on the incomprehensible.

Instead, we have allowed the judiciary to get on with it, believing that law is nothing more than a puzzle, a weird mix of legal customs and impossible-to-understand statutes.

And so, to our great disadvantage, we give judges and the way they carry out their functions a wide berth, hoping never to cross their paths during their working hours.

The enormous power of the State is divided between the Oireachtas, the Government and the judiciary. And for some strange reason we have no problem at all in tackling the manifest frailties that afflict our TDs and Senators – and the government that emerges from those two houses of parliament.

BUT the judiciary? We stay well clear. And the thing is, we simply don’t have that right or luxury – not if we’re serious about this democracy business. Not if we believe in public interest conversations. Judges and the decisions they make are too important to be ignored. They need to be considered, parsed, turned over, analysed, compared and contrasted, challenged or praised.

And if the judiciary and the system they control can’t withstand legitimate public criticism, even ignorant commentary, then they – as an independent pillar of State – are not up to much in the first place.

The collapse of the murder trial this week was not the result of any criticism of judges but rather a legitimate, balanced and wellinformed discussion on the defence of provocation on RTÉ’s Prime Time current affairs programme.

On the programme, an expert lawyer explained how, after a number of decisions made by judges, we in Ireland have a relatively generous provocation law (to the accused) as compared to other countries, a defence which if accepted by a jury in a murder trial can reduce the conviction from murder to manslaughter.

The following day it emerged that five members of a jury in a murder trial where the provocation defence was being mounted had seen the programme and, further, had discussed it. On that basis the trial was stopped.

Nobody is questioning the full authority of the judge involved to call a halt. But the decision invites a number of questions.

Surely the jury in that case would have had to consider the ins and outs of the provocation defence, since it was a determining feature of the trial?

Also, why couldn’t clear directions from the trial judge to the jury have removed any concerns of bias arising from the RTÉ programme?

THE Prime Time ‘provocation debate’ was prompted by the fiveyear sentence – reduced to just 45 months with normal remission – imposed on Kerry farmer Michael Ferris for the brutal killing of his neighbour, Anthony O’Mahony, early last year.

Ferris claimed provocation and the jury believed him, returning a manslaughter verdict. That’s why RTÉ discussed the issue. And if that’s not a legitimate matter of public interest, then we’re all left scratching our heads wondering what is.

Serious trials are going on all the time. But that cannot mean that public debate on all and every matter affecting the criminal justice system must not take place for fear of infecting the trial process.

Juries comprise women and men bringing their experience, decency, fairness and common sense to bear on the matter before them. They also bring their own foibles and biases, personality ticks and prejudices. They are human beings.

The judiciary cannot expect their juries to come wrapped up in cotton wool. They can, however, expect jurors to do the right thing when the law is explained to them.

The collapse of the three trials, in a fortnight, is likely to have a chilling effect on robust public debate. People will now be less likely to express themselves in a manner suitable to an open democracy.

The law, judges, sentencing and anything else that affects our courts system must always be up for challenge – even loutish attack. A criminal justice system that cannot handle that is hardly worth maintaining.

Scrutiny is good. It’s not just a right, it’s a duty. Silence is the enemy of freedom.