It is high time that the House had an opportunity to debate in a serious fashion the implications of the decision handed down in the Court of Criminal Appeal last week in the X case, to reduce from 14 years to four the sentence imposed on the offender. I tried to raise this matter last week without success. Of all the houses in the country where people have been debating the implications of the decision it is a strange irony that this House is the last one to deal with it.
The case has raised legitimate public concern about sentencing trends in sexual offences and, in particular, child abuse cases. Claims of hysteria and vengeance have been levelled at women's groups who expressed legitimate outrage at the perceived negation of justice as represented by the reduction in sentence. The confidence of women in the justice system has been badly shaken. This confidence is not unconditional and has taken a bruising, both by the substance of the judgment handed down and the language used in it. The public, both men and women, are not motivated by vengeance. They have been simply taken aback by the seeming emotional bankruptcy represented by the narrow legal logic in the judgment. Most people have an innate sense of decentness and fairness when it comes to the criminal justice system.
It is interesting to remark that from the beginning of this long tragedy which is the X case the public has been virtually excluded. It was the decision of the then Attorney General to injunct the girl, who was pregnant and suicidal, from terminating her pregnancy which catapulted this case into the public eye. In that case the decision to allow the injunction and then to lift it was made by male judges. Because the accused pleaded guilty at the last moment there was no need for a jury to determine the issues. Accordingly, the judge handed down a sentence of 14 years. As we know, last week, on appeal, the judges again decided to reduce that sentence. From beginning to end it has been a case dominated by lawyers. The public's only role has been after the event. Small wonder, then, at the level of frustration and disbelief expressed by thousands of ordinary men and women who feel dis-empowered and unrepresented in the process of justice as it applies to this case.
There is urgent need for this House to arrive at unequivocal recomendations for change prompted by this decision. A pattern of low sentences has been revealed in dealing with cases of unlawful carnal knowledge. A clearer definition of the parameters of this offence needs to be enshrined in legislation. Mandatory sentencing is not the way forward and would sow the seeds of further controversies and injustices. An offence of child rape needs to be clearly defined. Clearly there is a difference between unlawful carnal knowledge, say, between two consenting teenagers and the degree of criminality correctly associated with similar acts as between a 41-year old man and a 13-year old girl, the latter is clearly child rape whereas the former is of lesser, dubious criminality. We must be clear about the difference. Of course, sentencing should reflect the huge gulf of criminality that devides the two instances.
The Minister must review the necessity to change the role of prosecuting counsel in sentencing on appeal. As in this case, on appeal, the function of the court is to rehear the sentencing decision as if it were the court of trial. The role of counsel for the Director of Public Prosecutions is confined to that of providing the court with information; the State does not stand over or vindicate the sentence. Whereas counsel on behalf of the accused has free rein to attend to persuade the court to mitigate a sentence, this advocacy on behalf of the accused is not balanced by advocacy in the other direction. The victim's perspective must be as vehemently argued as that of the offender.
It is clear from reading the judgment in the X case that the judges were brought around to identifying with the plight of the offender by the persuasive arguments of senior counsel for the offender. I find no fault with that — barristers are retained to be persuaders — but what is clearly wrong is the imbalance in championing the victim's rights.
In all prosecution cases the Director of Public Prosecutions represents the State, that is the people. I have argued repeatedly in this House, not with much success, that the independence of the Office of the Director of Public Prosecutions would not necessarily be compromised by allowing a greater degree of accountability and review of the activities of that office. The figures reveal a large discrepancy between reported allegations of sexual crimes and the number of prosecutions proceeded with. There is evidence of a marked discrepancy when it comes to examining child abuse cases. Failure to prosecute validated claims of child abuse is a matter of the gravest importance. For individual victims who have reported such allegations, failure to prosecute can be devastating. Such a failure creates a culture of disbelieving children which must be addressed by our criminal justice system if we are really serious about protecting children. There has been a tragic escalation of such cases in recent years. Now that we are putting in place programmes to facilitate children to disclose to responsible adults allegations of such abuse, we must also put in place measures to pursue these allegations to detection, prosecution and, ultimately, sentencing. Perhaps the most unpleasant aspect of our criminal justice system is that, in many such cases, we are talking about unimaginable depravity against the most vulnerable members of society.
Two years after the Kilkenny incest case, most of the recommendations of the report into that case have not been implemented; only 17 of the 79 sections of the Child Care Act have been signed into law. Therefore, we cannot say that we have even minimum standards of protection of children against abuse. It is a tragic irony that a case which began with the State championing the constitutional rights of an unborn child has culminated in a decision which failed abjectly to vindicate the constitutional rights of a child abused by an adult.
