It's rather decent of the DPP, James Hamilton, to have raised a question about something many of us have wondered about for a long time. A close-fought contest between prosecution and defence in the trial of a person on a serious charge. Each point is argued and dissected with elaborate - and of course expensive - care. No unnecessary ground is given at any stage. The jury finally retires, and having deliberated appropriately, returns a plea of guilty.
And then the rules change. It's mitigation time, when one-sided attestation is permitted, without contest; and the usual conventions about evidence, and about the inadmissibility of hearsay, are abandoned. Defence counsel can say almost whatever they like about the character of the defendant, normally with the escape clause get-out: "I am informed, my lord. . ."
The defendant might have spent the past 10 years mugging first communicants for their Communion money as they left church, but in the absence of a previous conviction defence counsel can say that the unfortunate citizen in the dock is a hard-working family man who sings in the choir, baths old pensioners and performs heart transplants on black African babies. It's up to the judge to accept or reject whatever ectoplasmic fantasies are emanating from the defending mouth; and even if the prosecution know the defence is speaking in tongues, they will say nothing.
The central feature of the practice of common law is that it is adversarial: each point is contested in the interests of the accused and of society at large, with the interests of victim traditionally having been marginalised. To be sure, victim impact reports have recently altered that somewhat, but even then, not always in the interests of the victim. If a women has been raped, and turns out to be a sturdy and resilient individual who can put the rape behind her, we should applaud her good fortune. But that shouldn't become her rapist's good fortune also, to be reflected in a lighter prison sentence; yet that is one implication of the victim impact report system.
Certainly, the victim usually remains of far less importance at sentencing time than the accused; and counsel for the defence can say almost anything, just as long as it doesn't involve deliberate lies. Unproven assertions are fine. And that's it. You construct an electron telescope of a law case at vast expense and enormous complexity - and then decide its final phase with an old hammer and a rusty nail.
Of course, that's not the only departure from common sense and the rule book to occur in the post-juridical court. An offender's upper-class status and employment are often adduced as justification for a lighter sentence. If a young man from "a good home" seriously injures another young man in an unprovoked attack in the centre of Dublin, it's usually the case that the privileged background is presented as a sound reason to give the aggressor a lighter sentence.
The opposite is the case. He cannot blame poverty, or educational privation, or social disadvantage, as mitigation for his behaviour. He is fully guilty as charged; and if his career is likely to be damaged as a consequence of imprisonment, well, that was his well-informed, well-educated choice, and a sounder reason still to imprison him.
The same is true of the drunk or speeding driver, for whom counsel pleads that he drives for a living, and should be allowed to retain his licence in order to protect his livelihood. No. Again, his choice. He used to drive for a living, until he decided to put that profession at risk by speeding or drunken driving. No one else made the decision for him. Moreover, since he has proven himself to be an irresponsible driver, if he is not put off the road, he'll be driving much more than most people do; so ban him.
All logic: but neither logic nor the rules of court apply in the inverted universe which exists between verdict and sentencing. This is when the victim is usually left out of the game of charades, and may sit, open-mouthed, as the man she knows to be a drunken layabout who has repeatedly assaulted women, but without acquiring a criminal conviction, is hailed as a candidate for canonisation. And it will be the saint, not the violent layabout who receives the prison sentence. In the absence of a prior conviction, only good things, often imagined and always uncontested, are declared of a person about to be sentenced.
The DPP lifted the curtain a little bit on the legal world last weekend, but for the most part we outside that world remain thumb-sucking peasants wondering at the rules of the governing legal caste. These Moguls may change the rules by which they govern us through the courts, but we are quite unable to do so - perhaps, in part, because every Cabinet Minister is daily advised by a Senior Counsel. The Moguls are now unassailably indifferent to and wholly contemptuous of those whom they govern.
There's certainly no apparent shame among the ranks of lawyers at the astonishing fees the legal profession awards itself. We were reminded of the scale of those fees in the case last week of the wrongful arrest of the Limerick Two in 1991. Their legal costs totalled
€1 million.
Yes, yes, yes, we know the lawyers had to do a huge amount of preparatory work, and yes, yes, yes we all know they charged no more than the going rate. But what, precisely, is the going rate? This is a public bill. I suspect that most of us public would like to know how many legal hours we got for our million euros.