By Ursula Duddy
Reporter
The resident District Judge in Derry said that he was inspired to become involved in law after hearing of the injustice of Bloody Sunday as a teenage boy.
District Judge of Derry’s Magistrates Court, Barney McElholm, made the comments during an in-depth interview with the Derry News this week.
He described how learning of the injustice of Bloody Sunday when he was a teenage schoolboy in Omagh influenced his choice of career.
He was just 14-years-old on January 30, 1972. There were 14 people killed by the British soldiers on the streets of Derry following a march for civil rights. This resonated deeply with the young Barney McElholm.
Speaking about his youth he told the Derry News what set him on the path he took to eventually becoming a judge.
“When I was young, in primary school, I had always wanted to be a doctor, then maybe a dentist but when I got to grammar school and realised I was absolute rubbish at science,” he smiled.
“I was terrible; not a single experiment ever worked so I thought then that maybe it wasn’t such a good idea.
“But Bloody Sunday was a big thing. I remember we had a school assembly and they sent us all home for the day. Omagh was not a place that was known for riots anyway but we were told, ‘Get home, no trouble but we want you all to think about what has happened and what’s going on here’. I was around 14 and you were starting to become more aware of things.
“Omagh would not have been very Republican as such, the outlying areas were, so the teachers started saying, ‘There’s two ways you boys can go’ and they were encouraging us to get into the system and, if we didn’t like it, change it. But they were encouraging us to do it legally and peacefully.
“They started to encourage those of us who they thought might have a talent in that direction, for example there was a big thing about going into law and quite a few of us did.
“I began to realise that science wasn’t for me and I was thinking about a career. I liked debating; we had a strong tradition of debating at the school and I got into that. So, I started to think that maybe law would be the career for me and it went from there.”
Mental health, addiction and the law
As a judge, the profession is not without its challenges. One of the issues Judge McElholm has frequently been vocal about is the lack of a rehabilitating institution to which he can refer people with mental health and addiction issues, rather than simply consigning them to prison.
He said that he, as a judge and ‘private citizen’, can only ask for change but it is only our politicians that can implement it.
“That’s for the politicians; we are supposed to stay out of their territory – which is legislation. They’re elected to go in there and review the law, audit the law and change it where they feel it needs changed.
“My only input, like any other private citizen, would be if I were talking to a politician to say, ‘Maybe you could look at this, maybe you could consider this’.
“For example, when Claire Sugden (former Minister of Justice) was in post I met her on a few occasions, generally at domestic violence events, but we did talk about the problems of mental health issues and addiction issues in the courts.
“In the Magistrates Court, we deal with 96% of all criminal cases in Northern Ireland. And what we, the District Judges in the Magistrates Courts, have found is that most of our workload stems from people with mental health and/or addiction issues.
“It’s a dual diagnosis thing; they may start off with mental health issues and then maybe get into drugs to make them feel better about themselves. Or maybe drugs bring on mental health issues and, after a certain point, it doesn’t really matter which was the chicken and which was the egg.
“The fact is that people have these dual problems of mental health and addiction issues that it’s very hard to get people back onto a normal path from. But putting them in prison for short periods of time, we, as judges, have come to realise is a waste of time.
“You can send somebody away for four or five months, they will do half of that and they won’t be in long enough to get any treatment and the prisons aren’t geared up to treat them anyway. They might, just might, get involved with ADEPT (Alcohol and Drug Education for Prevention and Treatment) and start to deal with addiction issues but the problem is they’re not in long enough, so it’s not really getting dealt with before they’re coughed out onto the streets. Then they might get appointments but they don’t turn up to their appointments and fall back into their old ways.
“What I’ve tried to suggest and would encourage politicians to look at, is a better way of trying to deal with these people because prison for short periods of time is not solving anything, it’s not solving the problem. We in the judiciary are seeing more and more that we need to be problem solvers rather than just handing down sentences.
“Politicians need to look at what’s likely to work, they need to study other jurisdictions and they need to make up their mind what we want to do. I would suggest that if someone was treatable and amenable to treatment, then treatment should be offered. In some cases people need a period of confinement and they would tell you that themselves, they’ll say, ‘If you put me back onto that street, I’ll be back on the drugs and drink tonight’.
“But I’ve also been told, ‘If you put me into prison I’ll be back on the drugs because I can get them easier in prison’, I’m not saying that’s necessarily true but that’s what I’m told.
“If we had somewhere we could send people, where they could get specialist therapy and counselling, where they could be drug tested to make sure they weren’t continuing to take drugs and where they could stay long enough to get off the drugs and learn how to stay off them and develop strategies for staying away from drugs, they might stand a chance when they go back on the street.
“An awful lot of people in front of me, if they could get off the drink and/or drugs, wouldn’t be committing offences. Their lives may not be perfect but they’re not going to be out burgling other people’s homes, shoplifting or selling stolen goods to feed an addiction.”
Domestic violence
Judge McElholm said that part of the job of the judiciary is to decide what behaviour requires treatment, what requires punishment and what requires a combination of the two.
He said that someone capable of change should always be given the chance to rehabilitate where possible.
Judge McElholm used domestic violence crime as an example. He said that offering rehabilitation to perpetrators, particularly those at the lower level of offending, can be successful and save not only one victim but potential others. However, he added that violent crime must also always have an element of punishment to act as a deterrent.
“You have to make the decision, ‘Is this person worthy of offering this scarce resource to?’” he said.
“In some cases the degree of violence is so bad, you have to create a deterrent factor and there has to be a custodial sentence, but the same programme or another version of it could be offered to start in prison prior to release and to continue when that person is on licence - punishment and rehabilitation.”
He explained that an offender would pay a ‘heavy sanction’ if they did not continue with any rehabilitating programme outside prison as they would be returned to serve out the other half of their sentence or remaining licence period in jail.
“In every case there has to be a judicial decision; do you treat, do you simply punish or maybe do you do a bit of both and that is for the judges to decide, acting on guidelines and acting consistently and that’s for judges to decide on a case by case basis.”
Domestic abuse is a matter upon which Judge McElholm has often expressed strong views. In the past, he said he would ‘make no apologies for taking a hard-line’ on domestic abuse and also criticised ‘woefully inadequate sentencing powers’.
He admitted that sentencing on a particular facet of domestic abuse was something of a ‘hobby horse’ issue for him.
Learning from San Diego
“Women’s Aid here in Derry took me out to San Diego a couple of years ago; I was going out there in my capacity as Chairman of the new Family Justice Centre that Women’s Aid are going to create down here in Pump Street.
“We went out to look at Family Justice Centres in San Diego. They were one of the first, if not the first, and there was a huge convention of American and other Family Justice Centres from all around the world. We were out primarily to study that but there were various seminars on domestic violence and one of them was about choking.
“I have noticed that it has come more and more to the fore in domestic violence assaults; choking, strangulation, smothering and suffocation.
“What I discovered in San Diego was that it very rarely leaves marks, sometimes but not always. I’ve heard it in the past where it’s asked of someone, ‘Well, if he choked you until you passed out, how come there’s not a mark on you – you’re either lying or you’re exaggerating’.
“But we were shown real life videos of people being choked and in each one of them no marks were left. You can, particularly, suffocate somebody without leaving marks but even choking with your hands physically round someone’s throat doesn’t always leave marks. We watched a video of a woman being choked unconscious and there were no marks on her.
“They advised that this was one of the questions that should be disallowed during cross-examination; we were advised to shut it down immediately because medical evidence shows that there are not always marks. It’s not a given.
“Almost every state in America has made choking, suffocation, smothering and strangulation a serious felony punishable, in most cases, by between 15 and 20 years imprisonment and out there you do your time, you don’t get automatic remission. If you choke to the point of unconsciousness, they charge that as attempted murder and that’s life imprisonment.”
Judge McElholm said that choking with intent to commit an indictable offence, a charge here in Northern Ireland, is ‘very, very difficult to prove’ so it is rarely pursued in the courts and usually ends up being reduced to common assault with a maximum penalty of six months.
“The maximum sentence is six months where maybe somebody has been rendered unconscious; they can’t charge it as a more serious assault because there are no broken bones, the skin hasn’t been broken and no blood has been shed. But, if you think about it, one of the most atavistic human fears is being choked, drowning, being suffocated – it’s built into us, breathing is the most natural thing we do, so anything interfering with it, we panic, we’re terrified.
“All that perpetrator has to do in the future is make a sign to say, ‘I’m coming for your throat’ and that victim will do anything so it’s complete domination and complete control. So, six months for that, I’m afraid, just doesn’t cut it.”
He said education is key: “There are programmes Foyle Woman’s Aid is running, going into schools educating kids about domestic violence and abuse and having respect for each other but also teaching them you don’t have to be a victim or stay with someone that’s abusing you.
“A lot of people feel trapped they think, ‘All the benefits are in my partner’s name, the tenancy is my partner’s name, even the child benefit is in my partner’s name, what can I do?’
“They want to spread the word that you can get out and all those things are easy-peasy for us – that’s the point of a Family Justice Centre, everything under one roof. There would be benefits advice there, the police, medical staff and even if you want to move house, move schools and all the different agencies are there to help.”
Three main problems in Derry’s courts
Judge McElholm said that most of the problems he is faced with in his court are one or a combination of three main problems; addiction, mental health problems and domestic violence.
“Those are the three major problems that I find in my court and they’re not separate issues,” he said.
“I find that domestic-violence abusers can be people that abuse drugs or alcohol but not all of the time. Domestic violence is in every strata of society, it’s not reserved for the poor or the unemployed or necessarily addicts but in quite a lot of cases you will find elements of all three in a case.
“I would say that drink and drug addiction are huge factors in the Magistrates Court. People who are shoplifting are in to get a bottle of vodka or they’re burgling houses because it’s something they can sell in the pub to buy either drink or drugs and that’s an age old problem – that the addiction leads to the crime.
“Even people who are carrying on in the streets, disorderly behaviour, and a lot of it wouldn’t be done if they were sober.”
Judge McElholm also slammed violence and disorderly behaviour in Altnagelvin Hospital: “In the high 90 percent range of incidents in the hospital are the same and if you could eliminate that, the hospital would be a much nicer place to be, especially at the weekends.
“Somebody could be brought in because they’ve been found face down in the street and unconscious and they’re clearly drunk or on drugs and they’re brought there for help, maybe they’ve been found not breathing or breathing very shallow, then the very people trying to help them are assaulted and abused.
“Again, it goes back to abuse of substances. Education is a big part of it because the courts can only do so much. We have to be getting to the kids in the schools.”
The second instalment of the Derry News in-depth interview with Derry’s resident District Judge Barney McElholm will appear in Monday’s editon.
Judge McElholm will talk about the issues facing Derry; what has gotten better and what has gotten worse, vigilantism - both paramilitaries and self-styled ‘paedo-hunters’, what makes his job worthwhile and what makes his heart sink and a word of advice to potential offenders.
If you have a story or want to send a photo or video to us please contact the Derry Now editorial team on 028 7129 6600 for Derry City stories Or 028 7774 3970 for County Derry stories. Or you can email gareth@derrynews.net at any time.