The Gazette 1976

GAZETTE

March 1976

INTER-VARSITY LAW CONGRESS by Jacqueline Maloney

will prosecute husbands who beat their wives and others absolutely refuse to do so, is police discretion at* its worst. The speaker proposed and the persons present afterwards concurred in, the setting up of an Inde- pendent Complaints Board, similar to the Race Rela- tions Board in England to review police action and investigate complaints. The second lecture entitled "The Criminal Law (Jurisdiction) Bill 1975" was delivered by Mr. Brian Doolan, B.L. He first remarked that the Bill is the latest in a long line of repressive measures adopted by various governments since the foundation of the State. Intern- ment, military tribunals and Special Criminal Courts had been used time and again displaying abuse of the rule of law and eagerness to disregard constitutional rights. The Bill greatly increases the jurisdiction of the Special Criminal Court to deal with a whole range of offences while the Court continues in operation and there is strong danger that the Bill will institutionalise the Special Criminal Court. The continued operation of a non-jury court trying a whole range of offences must be of great concern to the legal profession and to the public alike, especially at a time when the Supreme Court are ruling that the duty to serve on juries will be much more widespread. Some recent convictions in the Court have caused comment among the legal pro- fession and sentences are often considered excessive. The Court is becoming a secret court since (I) the oppressive atmosphere, (2) the screening of visitors to the public gallery including personal identification and body searching, coupled with the strong suspicion that a secret camera photographs visitors, has almost led to a secret code, and, should the press cease attending, this would be the result. The speaker then noted a comparison between the rules of evidence applicable in the District Court and in the Special Criminal Court. Those in the District Court had the benefits of the Criminal Procedure Act, 1967. I'his provided for a preliminary hearing before a District Justice who could refuse to send the defendant forward for trial. The defendant could also call wit- nesses and have a sworn deposition taken. Thus the evidence could be challenged and the credibility of witnesses assessed. A person appearing before the Special Criminal Court could not avail of these impor- tant safeguards. The third and final lecture was delivered by Mr. Louis McRedmond, Head of Information and Publi- cations, R.T.E., on the topic "Controls on Broadcasting —Cui Bono". The speaker first explained that one of the main innovations of the Broadcasting Authority (Amendment) Bill, 1975, is that the R.T.É. Authority will be afforded some "security of tenure", whereas at the moment it is dismissible at the whim of the Govern- ment. He felt that the public's right to know should not be obstructed merely because it was felt that undesirable consequences could follow. The new Bill provides more comprehensive guidelines for the broadcaster. Mr. McRedmond pointed out that if too many requirements were written into law, the effect would be detrimental to the flexibility of broadcasting. If broadcasters felt insecure about certain types of coverage as to whether this would be in the public interest or not, this could be very detrimental to the individual. The speaker favoured leaving it to the broadcaster to work out how best to meet the fundamental requirements in a parti- cular situation and develop broadcasting potentiality. The provision for the Complaints Advisory Com- mittee in the Bill seems unnecessarily detailed and spells out in more detail than is helpful what the balance of the programmes should be.

About forty law students from the University Colleges of Dublin, Cork and Galway and Queen's University, Belfast, attended an Inter-Varsity Law Congress which was held in the Talbot Hotel, Wexford, on Saturday 14th and Sunday 15th February 1976. The Congress was held in order to promote good relations and co- operation between law students from the various universities and it is hoped that the practice will be continued. The general title of the Congress was "The Erosion of our Constitutional Rights" which we felt to be an important and urgent topic in need of some examination. The first lecture was delivered by Mr. Brian Gallagher, solicitor, on "Powers of Arrest and Detention and Police Discretion". The lecturer first quoted Art. 40 (4) (1) of the Consti- tution, "No citizen shall be deprived of his personal liberty, save in accordance with law." The phrase "in accordance with law" appears to mean "the law as it exists at the time when the legality of the detention arises for determination", but this can be tested again in the present Supreme Court, which only exists since 1961. Both Gardai and citizens alike have powers of arrest. Gardai can arrest when they see a felony being committed or on reasonable suspicion that one has been committed but arrest for one's own protection, as Connors v. Pearson — (1921) 2 IR — demonstrates, is illegal. Modern statutes have greatly increased Gardai powers of arrest but the fact remains that an illegal arrest may render the Gardai liable for an action in false imprisonment. There are several constituents of a lawful arrest. Firstly the person or preferably the Garda must have a power of arrest either at Common Law or by statute. The speaker noted some Gardai powers of arrest under the Dublin Police Acts of the nineteenth century, some of which are ludicrous. Secondly, at the time of the arrest the person must be informed why he is being arrested unless he can be taken to know it. What is worrying is not the law, but the manner in which the law is being enforced, since, in many cases, Gardai do not inform the person why he is being arrested nor caution him. The trend in modern statutes such as the Prohibition of Forcible Entry and Occupation Act, 1971 which gives the Gardai power to arrest persons "in occupation of property illegally" is for increased Gardai powers. This, coupled with the Supreme Court judg- ment in People v. O'Brien, 1965, makes the Gardai a very powerful body indeed. This case allowed the admissibility of evidence to be the product of an illegal search as long as there was no conscious and deliberate violation of constitutional rights or if greatly attenu- ating circumstances existed. (The articles were found in 118, Captain's Road, Crumlin, but the premises were described as 118, Cashel Road, Crumlin.) A Garda is only under a duty to arrest when a felony is com- mitted in his presence but in all other circumstances powers are discretionary. In the law there is no power of detention except under the Offences against the State Act, 1939. Under the Criminal Justice Act, 1951, the person arrested must be brought before the District Justice immediately and if remanded or sentenced, brought to a proper place of detention, which does not include Garda Stations. This provision is often abused. As regards police discretion, it is very wide indeed and it appears from the two English Brogden cases that ordinary citizens cannot get injunctions to compel the police to prosecute. The fact that some Garda stations

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