The Gazette 1992

JANUARY/FEBRUARY 1992

GAZETTE

Prosecuting Fraud in a Common Law Jurisdiction —A Reply

On the 16 November, 1991 the Criminal Law Committee of the Law Society hosted a seminar on the topic of "Criminal Law in the 1990s". There were several well known speakers from different countries. One speech, however, garnered most of the headlines in the public press. This was the address of Eamonn Barnes, the Director of Public Prosecutions. The paper he delivered was a well thought out dissertation on the difficulties encountered by the prosecution authorities, particularly in the area of fraud. The reason he was featured in the headlines, however, was because he claimed that many criminals were not even charged, let alone conv i c t ed, because the " r i ght to silence" of a s u s pe ct h i nde r ed t he proper i n v e s t i ga t i on of c r imes and because he suggested that this right be severely curtailed if not completely eliminated. Whereas I, and no doubt other de f ence lawyers, would agree w i th much of the content of his speech, I wish to take issue in this article w i th these views. The first point made by Mr. Barnes was that the question or otherwise of the retention of the right to silence "has not been seriously and sufficiently addressed at any level academic, judicial or legislative in these islands". This is just not correct. The whole question has been c on s i de r ed by va r i ous committees and individuals both here and in the United Kingdom. One can instance the Criminal Law Revision Committee 1972 and the Royal Commission on Criminal Procedure 1981 in the UK, the O'Briain Committee 1978 and to a lesser extent the Martin Committee 1990 in Ireland and numerous articles by such well k n own academics as Professor Rupert Retention of the right to silence

by Michael Staines Solicitor

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Cross and Professor Glanville Williams. There are regular calls by both the police and prosecution authorities for its abolition. For instance such a call was the main plank of the Garda Representative Association's submission to the Martin Committee at the beginning of 1990. Furthermore a debate was initiated by a speech made by the t hen As s i s t ant Commi s s i oner McLaughlin at the Law Society some years ago and this debate culminated in the Criminal Justice Act, 1984 which has curtailed the right to a large extent. Despite the steady and persistent calls for its abolition neither of the legislatures in these islands was prepared to completely abolish the right though inroads have been made in relation to certain types of offences. This I believe is an acknowledgement by the t wo parliaments that the right to silence still serves a fundamental purpose in our society. Tackle fraud loopholes As indicated earlier, I can agree with much of what Mr. Barnes says about other aspects of our criminal law and procedures. He specifically declared at the beginning of his speech that he accepted the principle of the presumption of innocence both in relation to actual court hearings and indeed to bail applications. He notes that the effect of this acceptance is an acknowledgement that bail must not be refused to an individual even if it appears likely that he will c omm i t c r ime in t he f u t u r e. Secondly, one must agree with him that there are several inadequacies in our substantive criminal law.

Michael Staines There is no adequate statutory code concerned w i th fraud. There should be. Unfair difficulties are caused to t he p r o s e c u t i on particularly in fraud cases by out- da t ed rules aga i nst hearsay evidence which were developed in an era when computers did not exist. I can see no difficulty in having these rules amended. I do disagree w i th him however, when he moves on to discuss what he describes as the " p a u c i t y" of powers entrusted to the police in Ireland. He states that as a general rule a Garda can only arrest a person for the purpose of bringing him before a court and that he cannot be arrested for any other purpose such as questioning. In practice the statutory exceptions to this rule have had the effect that the "general rule" applies only to a small category of offences. Section 30 of the Offences Against the State Act, 1939 allows a Garda to arrest a person and have him detained for a period of 48 hours. Arrestable offences under this Section are set out in the Schedule to the Act and include mainly offences of subversive nature and fire-arm type offences. It does not extend to such serious crimes as rape, murder or burglary. It was because there were no "detention" provisions for those serious crimes that the prosecution authorities sought and were granted the detention provisions contained in Section 4 of the Criminal Justice Act, 1984. These provisions apply 13