The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

U.S. Opportunity for Young Solicitor Sixteen young business people from all over Ireland will be given an opportunity to work in the United States for six months under a scheme announced recently by the International Fund for Ireland (the sponsors) and Hay MSL Ireland Management Consultants. There is an opening in the programme for a young solicitor to spend six months in a firm of lawyers in New Jersey. Any firm which would like to sponsor one of its younger soli- citors on this programme, or obtain further details should contact Damien Hand, Hay Management Consultants, New Mount House, 22 - 24 Lower Mount Street, Dublin 2. Telephone: 765994. •

or of limited education or powers of expression, the isolation f r om friends and the strange surround- ings coupled with the loss of liberty can readily tilt the balance of fairness against him. To cope w i th persistent questioning requires exceptional faculties. The dominant matter in the mind of such a person must be to regain freedom as soon as possible, w i t h a s t r ong temptation to say or sign whatever it is felt will achieve speedy release. This temptation becomes com- pelling where the suspect may be suffering from drug withdrawal symptoms". Mr. Barnes claims that the fact that such a person has a right of immediate access to a lawyer countervails these pres- sures. This right is indeed an i mp o r t a nt one ( t hough t he Government does not regard it as being so important as to undertake to pay solicitors under the Legal Aid System for attendances at Garda stations) but the solicitor is not as yet entitled to remain w i th the suspect during questioning. Erosion of right to silence My main criticism of Mr. Barnes' speech is that he neglects to mention that to a large extent the right to silence has already been drastically interfered with. There is a legal obligation on persons arrested under Section 30 of the Offences Against the State Act, 1939 to a c c o u nt for t he ir movements and if they fail to comply w i th such a requisition under Section 52 of the Act they are liable to be charged and sentenced to six months imprison- men t. Secondly, the Criminal Justice Act, 1984 criminalised a failure to give information in re- lation to fire-arms and ammunition (S15) and stolen property (S16). Furthermore an arrested person is now obliged in certain circum- stances to account for various objects, substances or marks or objects found near him and if he fails to do so a judge or jury may draw whatever inferences they wish adverse to the accused (S.18). Similar inferences may be drawn if an accused person fails to comply w i th a request to account for his

presence at a perticular place (s.19). Desp i te t he huge c amp a i gn launched by prosecution auth- orities and Gardai seeking from the Legislature such powers as those contained in Sections 15, 16, 18 and 19 of the Criminal Justice Act, 1984 these Sections are rarely, if ever, used. I have only once encountered the use of Section 16 and have never come across the use of Sections 15, 18 and 19. Similarly, it is only recently that persons have been charged for failing to account for their move- ments pursuant to a requisition under Section 52. If the prosecu- tion authorities really feel that the right to silence is such an obstacle t hey wo u ld do be t t er in my submission to utilise the powers they already have rather t han seeking a further dilution of the right to silence. There is no doubt that there are deficiencies in both our substantive criminal law and in our criminal procedures. There is a need as Mr. Barnes says for "reforming statutes based on c ohe r ent general principles". Defence lawyers would we l c ome reforms and indeed members of the Criminal Law Committee of the Incorporated Law Society of Ireland are contributing to different discussion papers of the Law Reform Commission. Mr. Barnes refers to the "B ig Lie" underpinning the right to silence. I would suggest that his judgment has been clouded by a different "B ig Lie" - that is that all of the d i f f i c u l t i es en c oun t e r ed by prosecution authorities emanate from this dreaded right. I believe t h a t r e f o rm of t he law and procedures in other respects as suggested by him together w i th a change in the manner in which crime is investigated with a greater emphasis on forensic, detective and intelligence work might be the real answer to his problems. • Coherent reform of criminal law

Denis C. Guerin New York Attorney at Law

Native Killarney, County Kerry.

Legal Advice and Assistance on Wills, Inheritances, Family Searches, throughout the U.S.A. Specialising in Immigration, Personal Injury, Property Transactions, Divorces, Wills, etc.

25 West 39th Street New York NY 10018

Telephone: Days: 212-398-9238 Evenings: 212 - 796 - 0970 Fax: 212-391-6917 PCS PETROCARGO MARINE SURVEYORS LTD. Capt. Thomas C. Nash M. INST. PET. Marine Consultancy; Independent Marine Surveyors; Vessel & Terminal Safety Inspection; Recruitment; Procedures Manuals. Cooleen House, Rushbrooke, Cobh, Co. Cork. Tel: 021-811677 Fax: 021-813009 Marine Expert Witness; Ship to Ship Transfer;

Michael

Staines,

Solicitor

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