The Gazette 1984

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 78 No. 5 June 1984

An "Unbalanced" Bill

W HILE our legislators are to be commended for the unusual thoroughness with which the Criminal Justice Bill is currently being debated, the minor amendments which the Minister for Justice has either introduced or accepted still leave the Bill open to considerable criticism. This journal has already expressed grave reservations about the central features of the proposed legislation insofar as it represents a major intrusion on the doctrine of the presumption of innocence and the right to silence. The amendments, welcome though most of them are, have done little to remedy this intrusion. The Law Society, in its submissions to the Minister on the Bill, drew particular attention to the fact that the powers of detention proposed are capable of applying not merely to cases where genuinely serious offences are being investigated but also to many offences which, although falling within the category bearing the possibility of a sentence of five years imprisonment, would not generally be regarded as serious. Many of these offences are not remotely similar to the kind of crimes, such as mugging, drug-dealing or the stealing of cars, which the proponents of the legislation have argued would be more easily tackled once the Bill became law. It was particularly disappointing to find Professor John Kelly, T.D., apparently failing to appreciate how wide a category of offences would fall within the ambit of the detention provisions. Access by a solicitor to his client, or, more significantly, access by the client to his solicitor, is still not adequately covered. It will still be possible for a person to be deliberately detained for questioning on a Friday night so as to render more difficult the contacting of a solicitor expeditiously. In other jurisdictions, panels of solicitors are available to attend, on a rota basis, at police stations or courts where persons are arrested or charged outside normal office hours. A development of this sort may now be necessary in Ireland, certainly in the major population centres. It was encouraging to see Dr. Michael Woods,

T.D., putting such a proposal forward and the Minister agreeing to examine it. It is unfortunate that proponents of the Bill, including the Minister, have continued to put forward the argument that powers of questioning similar to those proposed in the Bill are available to almost all other police forces in Europe. Such powers are not part of the ordinary law in England, being the jurisdiction which shares most closely our legal system. In other European countries where suspects can be questioned, it is not done by police officers but by examining magistrates. While there must always be reservations about the wisdom of introducing procedures from one type of legal system into another, it certainly would be worthy of detailed consideration that, if questioning of suspects in detention is to be allowed, such questioning should be done independently of the Gardai. Notwithstanding what has so far been written and said on the Bill since it was first introduced, one still ends up asking the question, whether the offered "panacea" will turn out to be worse than the perceived "illness". Why is it that lawyers, a conservative group in the main, have been at the forefront of the criticism of the main provisions of the Bill? Surely lawyers, like everyone else in our society, are not immune from being mugged or burgled or having their cars stolen, and should, therefore, welcome the offer of a "solution"? Perhaps the explanation is that lawyers, by training, rarely see simple answers to complex problems and reject solutions which they perceive as tending to create greater problems. Our criminal legal system has, up to now, been carefully moulded by judicial decisions and by statute to produce that "balance" (the Minister's adopted word) between the rights of the individual on the one hand and the rights of society (including the Gardai) on the other. To alter radically that "balance", as the Bill proposes to do, may leave us without an effective "scales of justice". At this late stage the Goddess Themis should be asked to remove her blindfold and join in the debate! •