To slink or not to slink

Some of you may have noticed that I haven't written in a while now. This is in fact my first newspaper article in around four weeks: and seeing as the last one I wrote contained a rather glaring hint at imminent retirement on my part, it was perhaps inevitable that I would be privately asked whether I'd thrown in the towel altogether.

The short answer to that is 'no', but oddly enough the longer answer turns out to be slightly harder to articulate. I would be lying if I claimed that the thought hadn't even crossed my mind. Oh, it crossed my mind all right. In the same way (and arguably for the same reason) that the chicken crossed the road... again and again and again . And yes, the Daniel Holmes judgment played a very large part in all such ruminations.

I don't intend to dwell too much on that one case - plenty more has happened in the meantime, including some truly shocking court judgments that fly in the face of the heavyhandedness meted to Holmes - but there does come a point when you have to ask yourself: why, exactly, do you do what you do?

In my case, part of the answer involves a brief revisiting of the forces at work behind this particular injustice, and - if you'll allow me the self-indulgence - my own sense of culpability for what happened as a consequence. So like Doctor Who, we shall have to hop into the Tardis for a brief flit back in time to around five weeks ago, when Holmes' sentence was confirmed by the court of appeal.

Holmes had been convicted of trafficking cannabis and sentenced to 10 and a half years and a fine of €23,000. He went on to appeal against the severity of the sentence... and not against the verdict itself (he had, after all, registered a guilty plea).

This is a crucial point upon which all subsequent considerations hinge. Given the nature of the appeal, the court's job was clearly to determine whether the circumstances of the case warranted a 10-year sentence. In other words, whether the sentence was, in fact, just... and not whether it was merely legal.

I need hardly add that the two issues are not interchangeable. There is simply no end to the list of things that are, were and will always be perfectly legal but at the same time monstrously unjust. A certain election result in 1981 immediately springs to mind, and that's without even thinking too hard.

And yet, obvious as this distinction seems to be to everyone else, our Courts of Justice are clearly unaware of its existence. Throughout their ruling, the three judges took great pains to stress that they were concerned strictly with the legality of the sentence, and not with its justice at all. Their entire argumentation revolves around the fact that Lawrence Quintano's original sentence was 'well within the parameters of the law' - even though no one had ever contested that fact - and did not even once pause to consider whether or not the parameters of the same law had been fairly applied.

This on its own constitutes an emphatic dereliction of duty on the part of the appeals' court, and as such an explanation is in order. Had the legality of Holmes' sentence ever been in doubt - let's say, the judge had handed down a 10-year sentence, when the maximum penalty at law was only five years - there would be other procedures at the appellant's disposal, and quite frankly I wouldn't be writing this article (or any of the others) at all.

But this is the vantage-point on which the Court built all its arguments; most of which, from this point on, become automatic non-sequiturs.

Example: "Indeed, the punishment requested by the Attorney General in the Bill of Indictment in terms of law was that of imprisonment for life, and, in addition, a fine (multa) of... not more than one hundred and sixteen thousand and five hundred euro (116,500)..."

Consequently, the judges argue, the lower court had already exercised discretion and handed down a lesser sentence than the maximum stipulated at law.

Of course it never occurred to them that this argument spectacularly fails to address the defence's chief complaint: i.e., that the sentence, albeit lower than the maximum, was still excessive for the crime in question. And this is by no means the only anomaly that arises from the same ruling.

At one point the judges briefly pause to pontificate about the dangers of cannabis. "Indeed this Court is aware of literature which describes the dangers of cannabis use and the serious consequences deriving therefrom, be they physical, mental, psychological, medical and social..."

Oddly, however - and in sharp contrast to all the purely legal points made in the same ruling, which are heavily annotated with cross-references to other cases, etc. - there is no footnote of any kind leading to any examples of such 'literature'. Instead we are expected to simply take the court's word for the dangers of cannabis... when a cursory search will reveal an abundance of literature pointing in the opposite direction, including some very recent medical studies published by such sources as Harvard University, and equally recent policy papers such as the Global Drugs Commission report - all of which, unlike the court's opinion, come heavily substantiated with hard evidence.

Naturally, you can argue that it is not the court's job to question the laws that it implements... and in most cases you'd be right. Not in this case, however. Bear in mind that the court's opinion on the subject of the harmfulness of cannabis was supplied as a specific answer to part of the defence counsel's entire thesis - i.e., that the punishment was grossly disproportionate to the gravity of the crime, given the emerging consensus that cannabis is not as harmful as previously believed, and also (another important point overlooked by the court) that there is even local consensus among drug policy experts that prison is a manifestly unsuitable penalty for such offences. Again, from the strictly legal point of view none of this matters; but from a justice point of view, all of it does.

So the last thing I would have expected is for the appeals court to simply deflect such a valid argument with nothing more than a piece of unsubstiated, opinionated and quite frankly inexpert fluff. At the same time, however, this rather dismissive attitude does not exactly surprise me. It is perfectly concomitant with other symptoms of a much deeper malaise implicit throughout that same ruling... and this (in a roundabout way) is where the personal culpability part comes in.

The appeals court ruling in Holmes' case is simply replete with telltale indicators that the judges were deliberately making a point which had very little to do with justice. There are plenty of examples (eg, excessive use of turns of phrase such as 'another point the appellant seems to have overlooked'... with all its thinly veiled overtones of sarcasm) but I'll limit myself only to the most glaring.

"Nor can this Court overlook forensic expert Godwin Sammut's conclusion that from the cannabis grass found, one could manufacture approximately 5,308 'reefers'. At no point did appellant state how many 'reefers' he smoked per day!"

If this were a lesson in creative writing - and I gave a module on that once - I would ask students to try and identify any aspect of the above sentences that might point towards greater meaning than the sum total of their words actually convey. Yes, that's right: it's the exclamation mark. Always a dead giveaway, seeing as, 99% of the time, exclamation marks are redundant anyway (the old adage being, if you can't convey a sense of urgency or emphasis without resorting to a signpost, you shouldn't be writing at all.)

Coupled with the deliberate repetition of the highly colloquial 'reefers', it is difficult to escape the inference that the court at this point is not 'answering' the defence's arguments at all... on the contrary, it seems to be pooh-poohing and ridiculing its entire case.

Incidentally there is another point to be made here, though it probably merits an article unto itself. By openly goading Holmes over his drug habit ('go on, tell us how many 'reefers' you smoke...'), the three judges of the appeals court betray crass ignorance regarding the same subject - i.e., drugs - that they also presume to lecture us about.

I'll keep this brief for now: but if you're growing a plant, as opposed to buying the finished product from a shady dealer (which is what Holmes, understandably enough, was explicitly trying to avoid)... you have no control over the amount of flowers and leaves that the plant actually produces. (note: I stress 'flowers and leaves' because that is what the court expert specified would have gone into those 5,308 'reefers'.) One cannabis plant will obviously produce way more flowers and leaves than can conceivably be consumed by any one user at any one time. So the fact that 'enough to make 5,308 reefers' was found in one man's possession, does not in any way mean that he would have to smoke all 5,308 reefers to sustain his argument that the plant was grown for 'personal use'.

But that's just a parenthesis. The real issue here is that there are clear stylistics indicators that the judges may have been influenced by something extraneous to the case itself... and I think we can all guess what that 'something' might be.

To my mind, the question now becomes: would the appeals court have acted differently, had the case not been given so much publicity beforehand? I have given the matter considerable thought over the past four weeks, and my conclusion is that... yes, undeniably, media publicity served to skew the course of justice in this particular case. And as someone with over 15 experience in this field I should have foreseen this eventuality, but didn't.

The flipside to that argument, however, is that there is no guarantee whatsoever that media silence would have resulted in a fairer deal; and sadly, there is much evidence to the contrary - namely in the form of dozens of other blatant miscarriages of justice that were never picked up or fanned by the media at all, and yet still happened.

So what does one do, faced with this dilemma? Continue to add to a crescendo of injustice that just seems to keep steadily getting worse? Or just slink off with your tail between your legs and do nothing?

Truth be told I'm still not sure of the answer. But my gut feeling tells me that slinking off can't possibly be the right thing to do... so I guess I'll be adding to injustice for a while longer.