The Gazette 1984

GAZETTE

APRIL. 1984

There is nothing wrong in principal with this unwritten rule, and indeed its existence is to be welcomed, provided accused persons who would otherwise plead not guilty, do not feel constrained to plead guilty. Recently, however, it has been the experience of Defence lawyers that certainly in relation to one or two specific types of crimes, such as the supply of drugs, the difference in sentencing is so great that accused persons are constrained to plead guilty to the offence. In some cases, they do so despite the fact that there is very little evidence against them in relation to the charge of supplying drugs, but they are afraid to take the chance of conviction with the huge sentence that would almost invariably be meted out to them. Indeed, many persons who have pleaded guilty to possession with intent to supply have been dealt with much more leniently than those who have been acquitted of this offence, and convicted merely of simple possession of drugs. There are many other aspects of this book 1 would like to have discussed. I would differ with the authors somewhat on their analysis of the legal position of State- ments taken in contravention of the Judges' Rules. I cannot understand how they could have written concerning the State Side Order of Certiorari without mentioning the case of Roehe -v- Delap, which has drastically curtailed the use of this remedy. On the other hand, however, the law has changed so quickly and so much that small lapses must be forgiven. At no stage do the authors attempt to look at the Criminal Process from a criminological prospective, and there is therefore no discussion accorded to academic or practical considera- tions of what constitutes crime itself and what makes some acts criminal and others not, or the usefulness or otherwise of the various penalties and places of incarcera- tion which have evolved to deal with criminal behaviour. Both authors have put a large amount of work and effort into producing this book, and I would recommend it to both practitioners and students alike. Unfortunately, from the authors' viewpoint, the new Criminal Justice Bill will have the effect of changing the Criminal Law Process even more radically than it has changed in the last few years, and it may be that in two or three years, much of this book will have to be re-written. • Michael Staines

admissability of statements is interesting, and I was glad to note that the authors exhibited a welcome scepticism towards confessions which unfortunately most of our Judges do not possess. They quote at length from a Judgment given by Cave J., in the last century, when he wondered why "voluntary" confessions were usually only produced in cases where there was no other evidence, and why if these confessions were freely made, prisoners wished to recant them immediately they appeared in Court. The authors make the very important point that of all the stages of immersion in the Criminal Process, the accused is more vulnerable in the Police Station, because, as stated earlier, this is the one occasion when, suspected persons are not provided with legal aid and assistance. When the new Criminal Justice Bill becomes law, this lacuna will become even more important. I was disappointed with the chapter dealing with the procedures in the District Court. The authors quote liberally from the relevant Statute law, but do not refer to some of the important case law. There is no mention for instance of McFadden's case which in effect altered procedures which had been long standing in the District Court, because they did not meet the fundamental requirements of fairness under the Constitution. Similarly, depositions are dealt with in detail, without even mentioning the fact that the procedures for taking depositions have changed radically over the past couple of years. These new procedures are discussed in Sherry's case. From a student's point of view, the chapters on the arraignment and trial are excellent, and certainly any student who wishes to understand the procedures on trial by indictment need only read the chapter to gain a good understanding of what is going on. From the practitioners viewpoint, however, I felt it glossed over several of the problems. For instance, it does not deal with the question of whether an accused person ought to give evidence first, before any of his witnesses are called if it is, in fact intended that he should give evidence. Secondly, there is no discussion as to whether applications for separate trials must be made to the actual Trial Judge who will be hearing the case. This would appear to be the legal position, and so can cause great difficulties. For instance, in the Dublin Circuit Criminal Court, it is often impossible to know in advance which particular Judge will hear which particular case. As adjournments are very rarely granted, both the accused person and their witnesses must be prepared to go ahead with their Trial on that day for fear that the actual Trial Judge will not grant the application for separate trials. One way of overcoming this problem is to ask the President of the Circuit Court to nominate his Trial Judge, thus enabling the Defence to apply some days beforehand. The section on plea bargaining does not reflect what actually goes on, in my opinion. The authors state that the Prosecution should never either offer to accept a plea of guilty to a lesser offence, or even invite the Defence " to treat". As Trials in the Central and Circuit Criminal Courts are conducted invariably by Barristers, they have a great opportunity to discuss the case beforehand and arrange a satisfactory deal. The authors also touch on another problem, which in my opinion has far graver consequences than actual plea bargaining. It is generally accepted that persons who plead guilty are, and indeed ought to be, dealt with more leniently than persons who are convicted after a Trial.

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