Michael McDowell (Dublin South East, Progressive Democrats)

The Denham committee is not some notion that occurred among judges in St. Stephen's Green one afternoon. They run all of these things and are quasi autonomous in this area. They collectively decide whether to sponsor Dr. Coulter's report and so on. They do not come to me looking for money for these things.

Before the DPP was given a right of appeal against unduly lenient sentences, there was a provision that somebody could have his or her sentence increased on appeal, but the only appeal was at the instigation of the accused. When that was the case, nobody ever said that it was for the prosecution to demand sentences. It was clearly understood that it was the personal responsibility of the trial judge at the time to get it right. In those days when the DPP had no right to appeal, it was all the more reason for the judge to get it right. If the sentence was unduly lenient, nothing could be done about it at all.

I am counselling the House not to go down the road where the judges should retire to being independent arbiters between two conflicting views. That would be a heinous error. Part of the job of a judge is to be an independent arbiter between two sides at that stage of the case, but an equally serious part is to take on the role of defending the Irish people's constitutional rights by punishing crime in an appropriate way. It is not just a question of being between two contending views. The judge must take on the personal responsibility to get the appropriate sentence.

There is a deep philosophical trend emerging which states that if the judges are getting it wrong, the DPP should tell them. That is not right. It is for the Judiciary to get it right in the first instance and on appeal. Judges will not approach cohesion and consistency if they do not sit down together and discuss hypothetical cases, if they do not generate the database we mentioned, if they do not keep each other informed of what they are doing and if they do not take collective responsibility for this area of law which is their responsibility alone. I am passionate about this because there is a tendency to say that every individual case is different from all other cases and all judges are free to do what they think, as there is an appellate process to correct them if they get it wrong. That is totally unhistorical. When imposing sentence, it is the function of a judge to defend Irish society from crime. He must impose a sentence that commands public confidence and there is no escaping that obligation. He cannot say that the media and the politicians are all wrong and he is all right. Judges are independent, but part of their independence is that they owe a duty to Irish society to get their decisions right.

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