Michael McDowell (Dublin South East, Progressive Democrats)

The point can also be made that judges get tired and worn out with the volume of crime with which they must deal and that they lose the freshness of anger and dissatisfaction that people facing the issue for the first time would have. The truth lies between the two positions. That is the reason I do not believe we should have a system of selection of penalties by juries or that we should always assume that the penalty agreed on by, for example, an audience of 100 in an RTE studio would necessarily be the correct penalty. By the same token, we cannot assume the contrary, that is, that whatever the Judiciary decides in every case is always right. That is an equally extreme point of view and is not correct either.

I am strongly of the view that it is necessary for the Judiciary to create databases and a common consciousness, to provide information, to receive input from outside and to study issues collectively, not just individually. I am not talking about judges reading The Irish Times over their cornflakes and coming to individual views, but about holding seminars on, for example, the extent of the drugs problem in Ireland and the modus operandi of drug gangs. They would assess such issues by reference to collective self-education. I do not like the notion of judicial training, as if judges are a group of circus animals who can be told to do things and respond in certain ways by having a political whip cracked at them. However, self-education is not simply a matter of musing quietly on the ways of the world based on the caseload that comes before an individual judge. There is a requirement that the Judicial Studies Institute should engage in collective deliberation and discussion about what is the appropriate response to a particular form of crime.

The all-party committee on sexual offences heard valuable evidence on some aspects of the criminal law. It was an educational process. The Judiciary organises conferences but I believe that process must be dynamised to ensure that judges really engage in collective discussion about, for example, what it is appropriate to do with a 23 year old man who rapes a girl and what is the fair approach to that issue. It does no harm to consider hypothetical cases in the context of actual cases. I am not asking the judges to behave like robots but to step up massively their collective activities in these areas. It does not infringe on their independence. Collective action by the Judiciary to bring about cohesion in its approach to sentencing is hugely important.

I do not wish to spend too much time on this issue but I will make a final point. There is a view expressed in today's newspapers that the role of the Judiciary in criminal law is purely as arbitrator in an adversarial process, but that is not the case. It is the case when judges are adjudicating in an adversarial process, but sentencing is not an adversarial process. Sentencing is a process where the judge is the instrument of criminal justice. It is not a matter of asking what the prosecution and the defence consider to be the appropriate sentence and deciding between the two. That is a wholly wrong model of the function of a criminal judge in the common law system.

It is the function of the Judiciary, affirmatively, to select appropriate penalties. It is also its function, in this context, to protect society and to uphold public confidence in the system of law and public cohesion in the face of crime. Furthermore, it is its function to hold open the prospect of rehabilitation and to deal with cases not only on an individual basis, because all offenders are different, but also on a collective basis, because all offences fall into broad categories and ranges.

There appears to be an idea that it is somehow impossible to bring to the sentencing process a dynamised, active, collective approach by the Judiciary, and that judges are individual, autonomous units who operate independently of each other, but I do not accept that proposition. I believe there is a collective responsibility on the part of judges — I do not mean this critically — to confer widely with each other and to come to consensus views on a sustainable, cohesive approach to sentencing policy. It is not the case that the traditional view of the judge as the arbiter between contending sides applies in the sentencing process. Judges are integral to the protection of everybody's rights under the Constitution, most particularly societal rights and the rights of individual victims.

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