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Column: When is jailing a fraudster no cause to celebrate? When it’s in Ireland.

Our judicial system is selective and incoherent – and judges are so pampered they can’t even open doors for themselves, writes Aaron McKenna.

Aaron McKenna

NORMALLY THE CONVICTION and jailing of a tax fraudster is a cause for celebration, some well-deserved back patting and a national round of “serves him right.” Derek Floyd ripped off the state (and you and me) for €683,138 in VAT repayments he wasn’t owed and was convicted on some 40 counts relating to the fiddling of his returns, which he had pled not guilty to at the outset of his trial in Ennis.

The warm glow of watching a tight git led away to prison was marred on account of the fact that Floyd is suffering a massive injustice. The very same day as Floyd was sentenced the final cost estimate of the Mahon Tribunal was released; some €196 million creamed by the legal profession to turn up the grand and sum total of a sweet nothing in material terms, like the novelty of watching a few corrupt politicians incarcerated.

Poor old Floyd is going to spend the next five years working on his ornithology skills while the Director of Public Prosecutions reads the Mahon Report very… very… slowly.

Floyd is the casualty of a justice system that is selective in who and how it punishes. From violent crimes to petty ones, from fraud to corruption and in sentencing the justice system is an incoherent and expensive one that seems to leave us baffled as to its logic or its probity.

When we think of our legal system we likely conjure images of people in wigs and gowns. It would be great to say that it’s an image lost to time or that the comparisons to the good old days when Britannia ruled the waves ends there. For all the things our legal system can’t seem to do right, like put paedophiles away for more time than it’ll take for their victims to make it to college, it is very good at preserving its traditions.

If you happen to be standing in a courthouse corridor, you may encounter a judge. He (or she – but most likely he) will be preceded by his ‘tipstaff’, a staff member who clears the way in front. As they pass you’ll be expected to stand with your back to the wall and bow your head. This isn’t the court of Louis XIV, remember. This is the modern Irish legal system.

‘They don’t even have to open the door themselves’

Judges are such a pampered race that they don’t even have to open the door to their courtrooms by themselves: They just knock on the inside, and a court official will scurry down and open it for them.

In a nod to our republican breakaway from the monarchical justice system of the UK it’s no longer customary to refer to a judge as “my lord” nor the American “your honour”. A plain old “Yes Judge, No Judge, Three Bags Full Judge” will do should you ever find yourself in front of one and your only reference point is from TV.

Other less sartorial traditions from our time in the Empire have survived. Irish judges were taking the same amount of holidays in the 1800s as they do today: a healthy four months, presumably to allow them time to travel by horse drawn coach to their faraway retreats.

The legal system is steeped in its introverted traditions and is more resistant to change than most of the pillars of our state. The Courts Service is also a bureaucratic nightmare, the gridlock of which is exacerbated by the long meanderings of a legal profession that is billing by the hour. Comparatively poorly paid public servants in the Courts Service do a thankless job, running to and fro with more dead trees in their hands than ought to be seen in the smart economy.

‘You might as well be calling the 1980s’

When you call up an administrative office at our busier courts you might as well be calling the 1980s. The phone will ring and ring until someone picks it up, you’ll ask for a specific individual and they’ll grumble at you for not having their direct extension, and then it’s pot luck to actually get them. Sometimes you can show up to court in the faster moving commercial cases to be told that it has been delayed or otherwise put off, terribly sorry you didn’t get the memo (because we didn’t send it).

Our justice system is a convoluted, outdated and unaccountable leviathan that delivers timely and consistent justice in a distant third place to the activities it is most proficient at: making lots and lots of lawyers rich and maintaining its high status in the socio-economic pecking order.

The legal profession in Ireland is a closed shop; a largely self-regulating industry that jumps around screaming about the demise of democracy that would occur if any of its traditions, methods or – God forbid – fees were to be reformed in any meaningful fashion.

The well cultivated image of distance from the affairs of mere mortals, the aloofness from any human flaws and the influences of politics is just that, an image.

The ranks of the judiciary are stuffed by the government of the day with a good selection of their choice candidates, who by mere circumstantial coincidence happen to have a background rather close to said government. This is the same justice system that, for some darned reason, can’t seem to catch, prosecute and jail many corrupt politicians for their crimes. Odd, isn’t it?

Justice in Ireland is unresponsive to the will of the people to see certain crimes punished more harshly, and some crimes punished at all.

‘We should move to elect certain of our judges’

The current system of government-led appointments to the judiciary and also of the Director of Prosecutions is supposed to allow the justice system to maintain an aloof impartiality. I would say that it simply limits to a select and already powerful group those who can sway our justice system. Instead, we should move to elect certain of our judges and prosecutors and make independent from government the appointment of others.

Thomas Jefferson remarked that “Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Independence can be trusted nowhere but with the people in mass.” Indeed, Jefferson remarked once that if there was a choice between electing a legislature or judges he would choose the judges, as “the execution of the laws is more important than the making of them.”

Judges and prosecutors should be accountable to the people directly rather than appointed through a mysterious and disconnected process. An elected public prosecutor seeking to keep his or her job would likely be interested in topics such as political corruption, lest they be replaced by someone who is. Elected judges can stand on their record of sentencing those found guilty by juries. Appeals courts can be split 50-50 between elected and independently appointed judges, or even 60-40 in favour of those appointed, to ensure probity of decisions.

Eric Posner, a Professor of Law at the University of Chicago, has studied the impartiality of elected judges and found evidence that, in fact, elected judges “are more productive (meaning they produce more opinions), nearly as professionally respected (as measured by citations per opinion), and no less independent (as measured by their willingness to disagree with judges in their own party).”

The issues round partiality of judges tends to lay on campaign contributions. Ireland has quite strict campaign finance laws, that could be stricter for judicial elections, compared to the US. And if a judge is seen to be partial, they must face the electorate to answer why within a few short years.

Reforming the justice system must be done with caution, but it must happen nonetheless if we are to see justice done more often and to the satisfaction of the people, from whom our constitution is derived and to whom the pillars of our state are responsible.

Aaron McKenna is a businessman and a columnist for TheJournal.ie. You can find out more about him at aaronmckenna.com or follow him on Twitter @aaronmckenna.

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