The Gazette 1990

A PRIL 1990

GAZETTE

or to contribute to such search in any way. He can pick a spot on the wall and stare silently at it for the period of any questioning or detention and he can do so with almost total immunity from adverse consequences including comments by the prosecutor in court. Now this may be a very good thing. There is the feeling that somehow it isn't cricket to expect, still less oblige, anybody to tell the truth if by doing so he may disclose that he has broken the law. I repeat that this may be the correct approach for us to adopt. There are however two points which I would make about the related topics of the burden of proof and the right to silence during an investigation or trial. The first is that as far as I am aware there has been no serious examination of them at academic, judicial or political level since the foundation of the State and that therefore we are, almost without question or thought, operating an inherited, indeed an imposed, sys- tem designed for circumstances elsewhere which may or may not have any relevance here. The second point is that there is little public awareness or means of awareness of the price paid in unsolved or unpunished serious crime by the continuation of our present system. All too often, and I mean very frequently indeed, cases stop dead at a desk in my office which would in another system proceed to a judicial inves- tigation designed to seek and keep seeking for the truth. I do not wish to appear to be an extreme right winger, whatever that is. By personal inclination I would put a very high premium on personal freedom and the import- ance of ensuring that no innocent person suffers. In the eyes of some, my office seems obsessed with doing precisely that and nothing else. Yet we merely operate, and faithfully operate, the system which we are given. But if that system fails, and is seen to fail, in its primary purpose - the deterring of crime and its swift punishment when it is committed - then there is an obligation on us all to look hard at it and see if it can be improved or if perhaps it may need to be changed fundamentally and radically. The first duty of the political entity known as the State - its primary raison d'etre - is the

Employment Law Reports This new series of law reports is designed to meet the needs of Solicitors, Barristers, Professional Advisers and all those concerned with the rapidly developing area of employment law. The reports aim to cover all important decisions of the Employment Appeals Tribunal and appeals therefrom to Circuit and Higher Courts. Decisions of the Labour Court and recommendations of equality officers will also be reported from time to time. Many decisions are contained in ex tempore judgments and the ELR thus aims to preserve valuable legal findings which might otherwise be lost. The current issue reports thirteen judgments, including the case of Vavasour v Bonnybrook Unemployment Action Group and decisions of the High and Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal.

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protection of its citizens. I fully appreciate that the cause of crime, particularly those crimes accom- panied by senseless violence, are complex and varied and that we should beware of simplistic solutions of them. My point is, however, that while those causes are being identified and eliminated by other agencies, it is the business of the criminal justice system efficiently to detect and convict offenders so that they can be temporarily prevented, and others deterred, from committing further serious crimes. Failure to do this must inevitably exacerbate the problem whatever its social causes may be. And we have a very serious problem. The most basic rights, to walk the streets, to park a car, to the inviolability of one's own home, are regularly and brutally invaded, and can no longer be taken for granted as they were a few short years ago. As a society, we have become almost resigned to this

state of affairs. Meanwhile, the chances of the robber and the burglar and the rapist beating the system and escaping scot free are in my view simply too high to be acceptable. In these circumstances, I regret that from my perspective I have to answer "no" to the question "does our system of criminal procedure work?" Conclusion Finally, could we spare a thought for the victims of crime, particularly of violent crime. I am not here referring to the question of com- pensation for victims of these crimes which we are unable to prevent. That is a matter for other authorities who have to consider difficult questions of priorities of demands on limited public funds. Meanwhile, however, all of us involved in the criminal justice system should bear in mind cons- tantly the extraordinarily traumatic

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